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THE    LAAY 


VENDORS  AND  PURCHASERS 


OF   REAL   PROPERTY. 


BY 


FRANCIS    HILLIARD, 

.AUTHOR  OF  THE   LAW   OF  TORTS,   THE   LAW   OF   MORTGAGES,   ETC.,    ETC. 


SECOND   EDITION. 

REVISED    AND     GREATLY    ENLARGED. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1868. 


:^\/^ 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

BY   FRANCIS   HILLIAED, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1868, 

BY    FKANCIS    HILLIAED, 

in  the  Clerlv's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE  : 
PRESS   OF   JOHN   AVILSON  AND    SON. 


PREFACE. 


Many  years  ago,  I  conceived  the  design  of  preparing  an  extended 
view  of  The  American  Laiv  of  Real  Property,  and  accordingly 
compiled  the  Treatise  or  Abridgment,  the  last  edition  of  which 
bears  that  title.^  That  work  was  modelled  substantially  upon 
the  approved  Digest  of  Mr.  Cruise,  which  had  long  been  used 
as  the  popular  text-book  upon  this  subject.  In  the  preface, 
I  took  occasion  to  remark,  that,  in  consequence  of  the  disuse  of 
many  feudal  doctrines,  which  our  ancestors  left  behind  them  in 
emigrating  to. this  country ;  the  gradual  adaptation  of  our  law  to 
the  republican  institutions  here  established  ;  and,  above  all,  the 
numerous  and  various  statutory  enactments  in  the  different  States 
of  the  Union :  the  English  Law  of  Real  Property  and  the  Amer- 
ican Law  of  Real  Property  had  come  to  be  two  distinct  systems, 
requiring,  of  course,  to  be  stated  and  explained  in  distinct  ele- 
mentary works. 

While  the  valuable  Digest  of  Mr.  Cruise  had  been  the  approved 
manual  of  the  American  lawyer,  upon  those  branches  of  the 
general  law  of  Real  Property  which  alone  he  assumed  to  treat ; 
another  portion  of  this  extensive  subject  was  then  occupied  by 
another  work  of  equal  merit  and  popularity  ;  to  wit,  Siigden  on 
Vendors  and  Purdiasers.  The  line  of  division  between  tliese  two 
works  is  very  marked  and  apparent ;   although  it  is  quite  imj)Os- 

1  This  work  has  heen  some  time  out  of  print.     Tlie  fourth  edition  is  now  in  press. 


IV  PREFACE. 

siblc  that  each  should  not  occasionally  and  incidentally  encroach 
upon  the  limits  of  the  other.  The  former  treats  of  the  title  to 
Real  Property  ;  the  modes  of  acquiring  such  title,  and  the  inci- 
dents, rights,  and  liabilities  which  appertain  to  it,  after  it  is 
acquired :  while  the  latter  is  restricted  in  plan,  though  not  always 
in  execution,  to  executory  contracts  of  sale  and  purchase,  by  which, 
when  carried  out,  the  title  will  of  course  be  changed,  but  which  in 
themselves  effect  no  such  change.  English  law  and  American 
law  are  less  divergeyit  upon  the  latter  tlian  upon  the  former  class  of 
subjects  ;  and  indeed  their  discrepancy  in  reference  to  mere  execu- 
tory contracts  concerning  real  property  results  chiefly  from  the 
different  rules  which  prevail  as  to  real  property  itself.  Thus 
estates  tail  have  been  substantially  abolished  in  the  United  States ; 
and,  although  there  is  no  legislation  immediately  relating  to  con- 
tracts of  sale  and  purchase,  which  by  way  of  title  to  tlie  property 
sold  involve  the  nice  points  of  entailment,  still  the  one  change 
necessarily  involves  the  other,  and  upon  both  subjects  alike  virtu- 
ally supersedes  those  intricate  and  subtle  distinctions  which  have 
given  occasion  to  so  many  decisions  in  the  English  Courts.  The 
same  may  be  said  of  the  obsolete  titles  of  Fine  and  Recovery, 
Tithes,  Advotvson,  Copyhold,  &g.  ;  and  to  some  extent  of  those 
other  numerous  subjects  —  such  as  Doiver,  Descent,  Devise,  Execu- 
tion, &c.  — which  have  not  themselves  become  obsolete  in  our  law, 
but  the  rules  and  principles  of  which  have  been  so  extensively  and 
vitally  modified  by  American  statute  and  usage. 

There  are,  moreover,  many  points  of  mere  practice,  in  suits  re- 
lating to  the  title  of  real  property  sold,  more  especially  suits  in 
Equity,  which  are  peculiar  to  the  English  Courts,  and  may  well 
be  very  cursorily  noticed  in  an  American  treatise. 

Upon  the  whole,  therefore,  I  may  state,  that  the  present  work  is 
designed  to  occupy  the  same  ground  in  American  law  which  has 
been  so  successfully  occupied  in  the  English  law  by  Sugden  on 
Vendors  and  Purchasers,  and  by  the  later  work  of  Mr.  Dart  on 
the  same  subject.     I  mean  the  same  ground  for  mere  practical  use  ; 


PREFACE.  V 

for,  as  I  shall  presently  explain,  this  is  the  prcvailhig  purjjosc  of 
the  book  ;  and  I  do  not  profess  to  have  imitated  the  free  discussion, 
criticism,  and  comparison  of  authorities,  which  are  so  characteris- 
tic of  the  AvoU-known  work  of  Mr.  Sugden  (or,  as  he  is  now  better 
known,  Lord  St.  Leonards).  Without,  for  the  most  part,  under- 
taking to  weigh  and  balance  conflicting  decisions,  or  to  pursue  the 
fine  threads  of  distinction  which  run  through  opposing  cases  and 
judgments ;  I  have  endeavored  to  })rcsent  in  a  compact  form  the 
laiv  as  it  is,  in  the  shape  of  the  English  and  American  authorities ; 
usually  accompanied,  where  there  is  a  serious  conflict  in  the  cases, 
with  a  general  expression  of  opinion  as  to  the  prevailing  rule  upon 
the  particular  topic  of  discussion.  It  has  always  seemed  to  me 
peculiarly  impracticable,  in  an  American  text-book,  for  the  writer 
to  advance  any  proposition  of  his  own  as  in  the  nature  of  the 
"  responsa  prudentum  "  of  the  Roman  law,  or,  in  other  wofds,  as 
the  laio,  authoritatively  eliminated  from  the  opposing  cases ;  be- 
cause, in  each  of  the  United  States  of  America,  the  decisions  of 
its  own  Court  are  the  controlling  rule ;  and  if,  in  a  treatise  de- 
signed for  national  use,  the  author  should  deduce  an  oracular 
conclusion  from  the  concurring  cases  in  a  majority  of  the  States* 
on  one  side,  that  conclusion  would  not  be  law  in  the  minority  of 
States,  whose  Courts  agree  on  the  other  side.  While,  therefore, 
the  highest  respect  is  due  to  the  private  opinion  of  such  a  writer 
as  Lord  St.  Leonards,  and  many  of  our  American  commentators, 
upon  any  controverted  point,  it  is,  after  all,  hut  an  opinion,  the 
value  of  which  in  any  particular  locality  is  best  tested  by  a  sum- 
mary statement  of  the  decided  cases  upon  which  it  rests. 

Although  the  subjects  treated  are  substantially  the  same  as 
those  in  Sugden,  the  plan  and  arrangement  are  wholly  different, 
and,  as  I  venture  to  suggest,  more  intelligible  and  appropriate.  I 
begin  with  the  distinction  between  executed  and  executory  con- 
tracts ;  and  proceed  to  explain  what  is  necessary  to  constitute  a 
contract,  its  consideration,  parties,  construction,  and  form, — 
including  Sales  by  Auction,  the  Statute  of  Frauds,  License,  and 


VI  PREFACE. 

Part-performance.  Then  follow  the  Time  of  Performance,  the 
Title  to  the  Property  Sold,  and,  in  natural  succession,  Partial 
Failure  of  Title,  and  the  General  Grounds  for  avoiding  or  re- 
scinding a  Sale,  in  whole  or  in  part,  whether  for  total  or  partial 
want  of  title,  for  non-payment  of  the  price,  or  other  causes,  — 
including  Mistake,  Fraud,  the  Sale  of  Expectancies,  Breach  of 
Trust,  and  Notice.  Having  completed  my  view  of  the  rights  and 
liabilities  growing  out  of  the  contract,  I  proceed  to  the  subject  of 
the  Remedies  for  enforcing  it,  —  first,  in  Equity,  including  the 
extensive  subject  of  Specific  Performance ;  and  then,  promiscu- 
ously, in  Law  and  Equity,  including.  In  more  minute  detail  than 
before,  the  title  which  the  vendor  must  show,  and  the  grounds  of 
objection  which  may  be  made  against  it ;  the  dependence  or  inde- 
pendence of  the  mutual  covenants  of  the  parties  ;  actions  to 
recover  back  the  price  paid,  and  defences  against  notes  and 
other  securities  given  therefor ;  the  claim  for  Use  and  Occupation, 
Damages,  Pleading,  Parties,  Sales  by  order  of  Court,  and  Miscel- 
laneous Points  of  Practice. 

In  the  present  edition,  the  latest  English  and  American  authori- 
ties are  very  copiously  not  only  referred  to,  but  cited,  sufficiently 
at  length  to  present  the  points  which  they  assume  to  decide. 

F.  H. 

October,  1868. 


CONTENTS. 


CHAPTER    I. 


Page 


Nature  of  the  Contract  for  a  Sale  and  Purchase  of 

Lands .   1-12 

1.     Distinction  between  the  exeeutorj'  contract,  and  a  transfer  in  pursuance  of  it; 
merger,  &c. ;  right  of  property  and  possession,  at  law. 

3.  T) ocirmQ  in  equity ;  whether  a  title  passes. 

4.  Whether  the  purchaser  has  a  descendible  and  devisable  interest ;  application  of 

funds;  revocation  and  republication  of  will,  &c.     Devise  by  a  vendor,  and 
the  etfect  thereof. 
12.     Reforming  a  deed,  for  variance  from  the  previous  contract. 


CHAPTER  n. 

What  Constitutes  an  Agreement  for  the  Sale  and 
Purchase  of  Lands.- — Distinction  between  a  Contract 
AND  A  mere  Proposal,  Offer,  etc 13-17 

1.  An  offer  does  not  bind,  till  accepted. 

2.  Contract  hy  corresjioiulence. 

7.    Contract  by  several  connected  papers. 

CHAPTER  IIL 

Consideration  of  a  Contract  of  Sale.  —  Price.     .     .     .     18-34 

1.    Necessity  of  a  consideration. 

3.  Nature  of  consideration ;  need  not  be  expressed. 

4.  Price ;  construction  of  the  agreement  for. 

10.  Sufhciency  of  security  for. 

11.  Mutual  rights  and  duties  of  the  parties  in  connection  with  the  price.    Offer  to 

perform,  tender  of  deed,  &c. 
24.     To  whom  the  price  shall  be  paid ;  parties  jointly  interested. 


Viii  CONTENTS. 


CHAPTER   IV. 

Page 

Interest 35-50 

1.  Claim  of  a  vendor  for  interest. 

8.  Rate  of  interest. 

9.  Interest  in  case  of  reversions. 
11.  Claim  of  a  vendee  for  interest. 
17.  Interest  on  money  paid  into  court. 
23.  Claim  for  im/jrovements. 

CHAPTER  V. 
Parties  to  Contracts 51-72 

1.  Necessity  of  parties ;  uncertainty,  &c. 

5.  Joint  parties. 

6.  Particular  tenants ;  in  tail,  for  life,  &c. 
13.  Husband  and  wife. 

19.  Representatives  of  a  party  deceased ;  heirs ;  infants. 

34.  Trustees  and  cestuis  que  trust. 

35.  Aliens. 
36 


Aliens. 

Agents ;  their  authority,  —  it  may  be  verbal ;  construction  of  written  pow- 
ers, &c. ;  form  of  the  contract  ;  whether  it  binds  the  agent  or  the 
principal. 

CHAPTER  VI. 
Sales  by  Auction 73-96 

1.  Forms  of  sale ;  sales  by  auction. 

2.  What  is  an  auction;  effect  of  a  bid;  separate  estates;  letting  by  auction. 
12.     Puffing. 

18.  Combination  of  purchasers  to  reduce  the  price. 

22.  Rights  and  duties  of  an  auctioneer. 

29.  Statute  of  Frauds,  as  applied  to  auctions. 

36.  Parol  evidence ;  part-performance. 

40.  Deposit. 

CHAPTER  VII. 
Statute  of  Frauds 97-119 

1.  Form  of  contracts  for  the  sale  and  purchase  of  lands. -=- Statute  of  Frauds. 
1  a.     To  what  parties  and  contracts  the  statute  applies. 

2.  What  property   is   within   the   statute;    products   of   the   soil;    growing 

wood,  &c. 
4.     Other  property  connected  with  the  realty. 
7.     Property  not  within  the  statute;  products  of  the  soil,  &c. 
9.    Paper  securities  relating  to  land. 


CONTENTS.  IX 

Paqe 

10.  Agreement  as  to  boundary. 

11.  Whether  the  statute  applies  to  a  claim  for  the/>Mce. 

14.     Construction  of  the  statute  as  to  the  form  of  executing  a  written  memo-  /^ 

randum;    what  is  a  signing;    reference  of  different  papers  to  each 
other,  &c. 

20.     Form  of  pleading  or  reh'ing  upon  the  statute. 


CHAPTER   VIII. 
Parol  License 120-137 

1.  Part -performance  and  license. 

2.  Nature  of  a  license. 

3.  Tmjilied  license. 

4.  Distinction  between  a  license  and  a  lease  or  an  easement. 

8.    A  license  creates  a  personal  right;  by  whom,  and  at  what  time,  it  is  to  be 
executed ;  wlio  are  bound  by  it. 
11.     Whether  and  how  far  a  license  is  revocable. 

CHAPTER  IX. 
Part-performance 138-161 

1.  License  and  part-performance. 

2.  Part-performance,  at  law. 

6.     Entire  performance,  in  equity. 

6.  Part-performance  in  equity. 

7.  ■  Who  may  avail  himself  of  part-performance. 
8-15.     What  acts  are  sufficient. 

11.  Proof  of  the  terms  of  a  parol  agreement. 

12.  The  effect  of  part-performance  is  founded  on  fraud. 
12  a.    Effect  of  payment. 

15.  Qualifications  of  the  general  rule. 

16.  Subsequent  purchasers;  notice. 
.17.     Doctrine  in  the  United  States. 

18.  Compensation  for  expenditures,  &c. 

CHAPTER   X. 
Construction  of  Contracts 162-179 

1.     General  rules. 

8.  Certainty. 

12,  Reservation  of  right  to  change  the  contract. 

13.  Separate  instruments ;  map  or  plan. 

17.  Parol  evidence ;  in  general,  eixcluded ;  exceptions. 

19.  As,  to  subsequent  agreement;  waiver;  variation,  &c. 
22.     Of  collateral  circumstances. 


CONTENTS. 


CHAPTER  XL 

Page 

Time  of  Performing  Contracts 180-207 

1.  Time,  when  of  the  essence  of  the  contract. 

3,  When  not  of  the  essence  of  the  contract. 

^  5.  Title  at  the  time  of  hearing,  &c.,  when  sufficient. 

10.  Waiver,  &c.,  as  to  time. 

14.  Necessity  and  effect  of  notice  in  reference  to  time. 

15.  Time,  in  connection  with  delivery  of  abstracts. 

19.  Deterioration  from  lapse  of  time. 

20.  Construction  of  contracts  as  to  time. 


CHAPTER  XII. 
Title  of  the  Vendor 208-216 

1.  General  importance  of  the  subject;  in  general,  the  vendor  is  bound  to 
convey  a  good  title;  grounds  of  objection  to  the  title;  mutual  rights  and 
obligations  of  the  parties,  as  to  conveyance  of  the  land  and  payment  of 
the  price. 

CHAPTER   Xin. 
Requisites  of  a  Valid  Title 217-241 

1.  In  what  a  valid  title  consists;  a  cZom6{/«</ title  is  insufficient ;  qualifications 

of  the  rule ;  burden  of  proof. 

6.  Legal  or  equitable  title. 

9.  Title  by  deed. 

12.  By  recovery. 

13.  By  destruction  of  contingent  remainders. 

14.  By  will,  and  other  assurances  connected  with  the  estates  of  persons  deceased. 
22.  Title  in  case  of  leasehold  interests  and  rents. 

29.    Title  as  affected  b^'  judgments,  &c. 

34.  Title  as  connected  with  banhriiptcy. 

35.  Presumption  of  title. 

37.  Title  by  limitation  and  lapse  of  time. 

38.  Title  derived  from  married  women,  infants,  and  aliens. 

42.    Miscellaneous  questions  of  title.  —  Time  allowed  for  perfecting  a  title. 

CHAPTER   XIV. 

Title  of  the  Vendor  ;  Mutual  Claims  of  the  Parties, 

as  depending  thereon 242-261 

1.  Mutuality  of  the  rights  of  vendor  and  vendee ;  claim  of  the  former  to  the 
price,  as  depending  upon  title,  and  of  the  latter  to  a  deed,  as  depending 
on  payment  or  tender  of  the  price.  —  Suits  in  equity  and  at  law. 


CONTENTS.  XI 

Paue 

3.  What  deed  the  vendor  is  required  to  tender;  deed  of  a  third  person. 

4.  Effect  of  the  vendor's  disabling  himself  to  convey. 

5.  Question  of  time,  as  bearing  upon  the  rights  of  vendor  or  vendee ;  notice; 

title  at  the  time  of  decree  in  equity ;  title-deeds. 
12.     Waiver  of  the  rights  of  a  party;  notice,  possession,  delay,  &c. 
15.    Bight  of  the  vendor  to  rescind  for  want  of  title. 

CHAPTER  XV. 

Independent  Covenants  in  a  Contract  of  Sale  and 
Purchase.  —  Exceptions  to  the  Rule  of  Requiring 
the  Vendor  to  Convey  a  Good  Title 262-269 

CHAPTER  XVI. 

Title  to  the  Property   Sold.  —  Partial    Failure    of 

Title 270-282 

1.  Partial  defect  of  title,  what  constitutes. 

2.  When  it  is  no  ground  of  objection  by  the  vendee. 

4.  Compensation  for  partial  failure  of  title. 

5.  When  ground  for  rescinding  the  sale. 

9.    Whether  the  vendor  may  object  on  the  ground  of  deficiency  or  excess  in 
the  property. 

CHAPTER  XVn. 

Reference  of  Title 283-287 

1.    Questions  of  title,  when  and  how  referred.  —  Forms  of  proceeding. 

CHAPTER  XVIII. 
Title-deeds 288-292 

CHAPTER  XIX. 

Title  to  Leaseholds 293-306 

1.    Agreement  for  a  lease. 

5.    Whether  an  agreement  for  a  lease  or  purchase  in  fee;   agreement  not 
containing  words  of  inheritance,  &c. 

9  a.     Obligation  as  to  title ;  performance  in  part. 
12.     Compensation. 
14.    Effect  of  notice. 

16.  Parol  evidence. 

17.  Waiver. 

18.  Statute  of  Frauds. 
24.    Part-performance. 


xii  CONTENTS. 


CHAPTER   XX. 

Page 

Rescinding  of  Sales 307-321 

1.  General  subject;  miscellaneous  grounds  for  abandoning  a  contract. 

7.  Misdescrijriion  of  the  property. 

11.  Compensation. 

12.  Presumption  of  rescission. 

13.  W'livcr. 

16.  3Mc  of  rescinding;  by  vendor  or  vendee;  form  of  action. 
26.     Interest,  improvements,  &c. 

CHAPTER  XXI. 
Grounds  of  Avoiding  a  Sale. —  Mistake 322-341 

1.  General  remarks. 

3.  Mistake,  what. 

4.  Ignurance  or  mistake  of  law  and  fact. 

5.  Equitable  relief  in  case  of  mistake;  mode  and  extent  of. 

7.  Compensation  or  rescinding  in  case  of  mistake;  quantity  of  land  sold  and 

conveyed ;  sale  in  gross,  or  by  boundaries ;  more  or  less,  &c. 

10.  Title  to  part  of  the  property  sold;  when  sufficient. 

11.  Compensation. 

14.  Eescission  of  the  sale. 

17.  Rights  of  the  vendor  in  case  of  mistake. 

21.  Waiver. 

2.3.    Reforming  of  agreements. 
28.    Parol  evidence. 

CHAPTER   XXII. 
Grounds  of  Avoiding  a  Sale.  —  Fraud 342-365 

1.    Misrepresentation  avoids  a  sale. 

3.     Wliether  made  ignorantly  or  intentionally;  express  or  implied. 

8.  Under  what  circumstances  the  vendee   is  .bound  by  a  fraudulent  sale; 

waiver;  mode  of  rescinding;  acceptance  of  deed;  lapse  of  time,  &c. 
14.     Part-performance  and  compensation. 
16.    Parties;  principal  and  agent,  &c. 
19.     Fraud  of  the  vendee. 

22.  Evidence,  damages,  &c. 

CHAPTER  XXIIL 

Implied  or  Constructive  Fraud.  —  Incapacity,  Inade- 
quacy OF  Consideration,  etc 366-376 

1.  Constructive  fraud. 

2.  Mental  inability. 
5.     Drunkenness. 

8.     Inadequacy  of  consideration. 

12.  Excess  of  consideration. 


CONTENTS. 


CHAPTER  XXIV. 

Paqb 

Sale  of  Expkctaxciks 377-383 


CHAPTER   XXV. 
Constructive  Fraud.  —  Trust,  etc 384-405 

1.     General  principle  of  conjidential  relations. 

4.  Agents. 

5.  Trustees ;  execution  sales,  &c. 

8.  Attornevs,  solicitors,  &c. ;  auction  sale. 

11.  Executors,  guardians,  &c. 

13.     Miscellaneous  trusts;  lease;  remainder;  public  trusts. 
14  a.     Sales  for  taxes. 

15.  Exceptions  and  limitations  to  the  general  rule;  third  persons ;  allowance 

for  improvements ;  time  of  avoiding;  auctions. 
22.    Kemedies. 

CHAPTER  XXVI. 
Notice 406-420 

1.  General  principles  as  to  notice. 

4.  Express  and  implied  notice. 

5.  Notice  sufficient  to  demand  inquiry. 

6.  Implied  notice,  chiefly  as  arising  from  possession  under  an  unrecorded  deed. 

9.  Notice,  to  whom  given;  agents,  solicitors,  &c. 

12.  By  whom. 

13.  Notice,  in  cases  of  lease  and  tenancy. 

16.  Lis  pendens. 

CHAPTER   XXVII. 

Remedies  of  Vendors  and  Purchasers.  —  Law  and 
Equity.  —  General  Jurisdiction  of  Courts  op  Equi- 
ty ;   Compensation  ;   Rescinding  ;   Lien,  etc 421-430 

CHAPTER  XXVIII. 
Specific  Performance 431-469 

1.  Nature  and  history  of  the  remedy. 

3.  Its  peculiar  application  to  contracts  relating  to  real  estate. 

4.  Questions  of  jurisdiction,  in  rem  and  in  personam. 

5.  Form  of  the  contract;  bond  with  penalty. 

7.  Specific  performance,  in  connection  with  other  modes  of  relief. 

8.  Denial  of  specific  performance,  and  rescinding  of  the  sale,  compared. 


XIV  CONTENTS. 


9.  Compensation — damages. 

10.  Contract  must  be  certain. 

12.  ^nd  mutual. 

13.  And  reasonable  and  equitable  —  fraud,  mistake,  &c. 

16.  But  not  necessarily  benejicial. 

17.  Public  policy. 

18.  Consideration,  inadequate  or  excessive. 
20.  Price  fixed  by  arbitration. 

23.  Plaintitf  must  prove  performance  of  his  own  contract. 

26.  Partial  failure  of  title. 

30.  Statute  of  Frauds  —  part-performance.    Defences ;  pleading :  evidence,  &c. 


CHAPTER  XXIX. 

Particular  Acts  to  be  done  by  the  Vendor,  in  order 

TO     ENFORCE     THE     CONTRACT. TeNDER     OF     DeED,    BY 

WHOM  TO  BE  MADE. OfFER   OR  ReADINESS   TO  PERFORM, 

WHETHER  Sufficient.  —  Allegations  and  Proofs  .     .     470-478 


CHAPTER  XXX. 

Claim  of  the  Vendee,  in  case  of  Defective  Title, 
or  other  Breach  of  Contract.  —  Form  of  Action. 
—  Tender  of  Purchase-money  and  Demand  of  Deed, 
ETC 479-485 


CHAPTER  XXXI. 

Notes  and  other  Securities,  given  for  the  Purchase- 
money  OF  Land  ;  Actions  thereupon,  and  Defences 
TO  SUCH  Actions  ;  Tender  of  Deed  ;  Total  or  Par- 
tial Failure  of  Title;  Covenants  of  Warranty     .     486-501 


CHAPTER  XXXII. 

Waiver   of  Mutual   and    Conditional  Rights    of  Ven- 
dor AND  Vendee 502-506 

CHAPTER   XXXIII. 

Action  for  Use  and  Occupation,  between  Vendor  and 

Vendee 507-517 


CONTENTS.  XV 


CHAPTER   XXXIV. 

Page 

Measure    of    Damages    to    be    Recovered  by  Vendor 

AND  Vendee 518-529 


CHAPTER   XXXV. 

Liquidated    Damages    and    Penalties  ;    Arbitration  : 

Damages  in  Equity 530-54 


CHAPTER  XXXVI. 
Costs 547-5G2 

CHAPTER  XXXVII. 

Parties  to  Actions 563-571 

CHAPTER  XXXVIII. 

Pleading 572-579 

1.  General  remark. 

2.  Allegation  of  performance  in  case  of  a  dependent  contract. 
8.    Demand  of  specifxation. 

13.  Pleading,  as  aflfecting  damages. 

14.  In  suit  against  a  purchaser  or  adverse  claimant. 
22.     In  case  of  illegality  and  fraud. 

CHAPTER  XXXIX. 
Sales  by  Order  of  Court 580-588 

1.     General  jurisdiction  of  equity. 

1  h.     Caveat  emptor,  whether  applicable. 

3.  Necessity  of  confirmation ;  effect  of  a  decree. 
7.     Sales  at  auction;  when  voidable. 

9  a.     Irregularities  in  the  order  of  sale;  rescinding  of  sale. 
31.    Miscellaneous  points. 


Xvi  CONTENTS. 


CHAPTER  XL. 

Paoe 

Miscellaneous  Points  of  Practice 589-594 

1.  Payment  of  purchase-money  into  court,  and  the  disposal  thereof. 

6.  Security  for  purchase-money. 

10.  Injunctions. 

14.  Ne  exeat  regno. 

21.  Production  of  deeds,  &c. 

24.  Arbitration  and  award. 


INDEX  TO  CASES  CITED. 


A. 

Paoe 

Page 

Alsop  V.  Patten 

151 

Abobtt  V.  Allen 

493 

American  v.  Oakley 

582 

583 

V.  Calton 

552 

Ameriscoggin  v.  Bragg 

121 

136 

V.  Dunivin 

469 

Anderson  v.  Bacon 

397 

V.  Sworder 

560 

V.  Ciiick 

88 

141 

Abel  V.  Heathcote 

219 

V.  Foulke               276, 

584 

587 

Acland  v.  Gaisford 

42 

V.  Harold 

111 

Adams  v.  Freeman 

122 

V.  Lemon 

404 

V.  M'MiUan    24,  60,  108,  111,  115 

Andrew  v.  Andrew 

287 

V.  Smith 

25 

Andrews  v.  Hobson 

401 

V.  Townsend 

140 

Andriot  v.  Lawrence 

19 

V.  Wadhams 

22 

Annan  v.  Merritt 

141 

V.  Williams 

243 

Anson  v.  Hodges 

46 

Adderley  v.  Dixon 

432 

Anthony  v.  Leftwich 

160 

Addies  Charity 

562 

Archer  v.  Preston 

434 

Addison  v.  Dawson 

868 

Argenbright  v.  Campbell 

1 

^tna  V.  Tyler 

480 

Arguello  v.  Edinger 

463 

Agar  V.  Macklew 

28 

Arms  V.  Ashley 

480 

Aiken  v.  Sanford 

246 

Armstrong  v.  Pierson 

605 

Akerly  v.  Vilas 

196 

V.  Vroman 

97 

Albea  v.  Griffin 

161 

Arnold  v.  Brown 

397 

Albert  v.  Ross 

100 

Ascutney  v.  Ormsby 

91 

Alderman  v.  Neate 

294 

Ashcom  V.  Smith 

337 

Alexander  v.  Beresford 

352 

Ashley 

405 

V.  Crosby 

11,  234,  292 

V.  Baillie 

414 

V.  Utley 

429 

Ashman  v.  Williams 

137 

Allen  V.  Allen 

117 

Ashmore  v.  Evans 

469 

V.  Anderson 

521 

Astley  V.  Weldon^ 

531 

V.  Booker 

151 

Athens  v.  Nale 

269 

V.  Bryant 

400 

Athol  V.  Derby 

430 

V.  Cameron 

163 

Attorney-General  v.  Backhouse 

230 

V.  Chambers' 

117,  159 

V.  Christ  Church 

37 

V.  Davison 

450,  467 

V.  Foster 

162 

V.  Greene 

60,  62,  187 

V.  Gower 

413 

V.  Hammond 

334 

V.  Sitwell 

12 

V.  Mitchell 

6 

V.  Taylor 

75 

V.  Sanders 

264 

Attwood  V.  Small 

359 

V.  Stephanes 

83 

V.  Taj'lor 

42 

Alley  V.  Deschamps 

181,  182,  278 

Atwood  V.  Cobb 

4 

Alna  V.  Plummer 

520 

Austin  V.  Chambers 

403 

Alpass  V.  Watkins 

220,  480 

V.  Sawyer 

101 

Alsop  V.  Oxford 

558 

Ayer  v.  Hawkes 

512 

XVlll 


INDEX   TO    CASES    CITED. 


Aylesford's  case 
Aylett  r.  Ashton 
Ayres  v.  Hayes 
V.  Pease 


B. 


Babcoek  v.  Smith 
Bachelder  v.  Wakefield 
Bacon  v.  Simpson 


Bailey  v.  Collett 

V.  Fitzmaurice 
V.  James 
Baker  v.  Boston 
V.  Carson 
V.  Carter 
V.  Morgan 
Baldwin  v.  Belcher 

V.  Campfield 
V.  Munn 
V.  Palmer 
V.  Salter 
V.  Thompson 
Ball  V.  Carew 

V.  CuUimore 
Ballard  v.  Walker 

V.  Way 
Balmanno  r.  Lumley 
Bamford  v.  Shuttleworth 
!^ander  v.  Snyder 
Bandon  v.  Becher 
Bank  v.  Hagner 
V.  Torrey 
Bannon  v.  Bean 
Barbour  v.  Nichols 
Barclay  v.  Baine 
Barickman  v.  KuykendaU 

Baring  v.  Moore 
Barker  v.  Anderson 
Barlow  v.  Scott 
Barnardiston  v.  Lingood 
Barnes  v.  Baylies 
Barnett  v.  Wheeler 
Barney  v.  Loper 
Barnwall  v.  Harris 
Barraque  v.  Siter 
Barrett  v.  Buxton 
Barstow  v.  Gray 
Bartlett  v.  Blanton 

V.  Pickersgill 

V.  Purnell 
Barton  v.  Moss 
Bassler  v.  Nieslar 
Bast  V.  Alford 
Bateman  v.  Johnson 
Bates  V.  Delavan 
Battle  V.  Rochester 
Baugh  V.  Price 
Bawtree  v.  Watson 
Baxter  v.  Brand 
V.  Brown 


Page 

141 

60 

22 
23 


338 
135 
201 
405 
42 
294 
505 
123 
161 
405 
55,  194 
10 
446 
501 
139 

173,  176,  196 
141 

401,  404,  411 
513 
315 
300 
286 
71 
149 
587 

244,  502,  504 
403 
100 
523 
288 

62,  109,  139, 
151,  316 
584 
373 
437 
380 
483 
229 
188 

227,  236,  291 

5 

368,  380 

111 

289 

170 

87 

398 

29,  157 

439 

246 

455 

482 

342 

380 

35,  36,  466 

294 


Baxter  v.  Conolly  301 

V.  Costin  397 

V.  I^ewis  471 

Beal  V.  Seiveley  222,  255 

Beaman  v.  Buck  157,  437 

Bean  v.  Flint  440 

Beard  v.  Hubble  327 

Beatnift't'.  Smith  407 

Beaumont  v.  Bramley  11 

V.  Dukes  342 

Beavan  v.  McDonnell  368 

Beckerman  v.  Kuykendol  257 

Beckwith  v.  Kouns  454 

V.  Marryman  238 

Bedford  v.  Abecom  163 

V.  Forbes  234 

Beeker  v.  Hastings  358 

Beeson  v.  Beeson  399,  400 

Belcliier  v.  Reynolds  452,  543 

Belknap  v.  Sealey  351 

Bell  V.  Andrews  38 

V.  Howard  383 

V.  Huggins  78 

V.  Thompson  454,  456 

V.  Twihght  412 

Bellinger  v.  Kitts  30 

Bellows  V.  Stone  338,  340,  341 

Belworth  v.  Hassell  271 

Bemis  v.  Becker  162,  165 

Benedict  v.  Beebee  109 

V.  Lynch  181,  189,  441 

Bennett  v.  Abrams  6,  140,  436 

V.  Carey  195,  254,  286,  558 

V.  Fowler  285,  661 

V.  Rees  284 

V.  Smith  69,  449 

V.  Tankerville  9 

V.  Womack  .  233 

Benson  v.  Glastonbury  464 

Bent  V.  Cobb  85 

Bernal  v.  Donegal  380 

V.  Hovious  101 

Berny  v.  Pitt  380 

Berry  v.  Vanwinkle  424 

V.  Walker  437 

Besant  v.  Richards  298 

Best  V.  Stow  343,  360,  445,  446,  452 

Beverley  v.  Lawson  335 

Beverley's  case  367,  368 

Bexwell  ?;.  Christie  77 

Bibb  V.  Poather  343 

Bickerton  v.  Burrell  71 

Bierne  v.  Erskine  332 

BlUington  v.  Welch  156,  411 

Binks  V.  Rokeby  40,  275 

Birce  v.  Bletchley  16 

Birch  V.  Haynes  285 

V.  Joy  39 

Bird  V.  Boulter  89 

V.  Higginson  131 

Birdsall  v.  Waldron  37 

Biscoe  V.  Brett  286 

V.  Wilks  466 

Bishop  V.  Mid-Hauts  438 


INDEX   TO    CASES    CITED. 


XIX 


Page 

Bishop  of  Durham 

562 

Bitner  i\  Broui^h 

524, 

525 

Blacliford  v.  Ciiristian 

373 

Blackburn  v.  Stace 

460 

Blacklow  I'.  Laws 

259 

Blackmore  v.  Barker 

580 

Blackwell  v.  Lawrence 

521 

Blackwilder  v.  Loveless 

439, 

443 

Blades  v.  Blades 

407 

Blagden  v.  Bradbear 

86,88 

Blair  v.  Marsh 

53 

Blake  v.  Phinn 

279 

Blakeney  v.  Bagott 

393 

V.  Ferguson 

145 

341 

Blakeslee  v.  Blakeslee 

158 

Blanchard  v.  M'Dougal 

463 

V.  Moore 

359 

Blann  v.  Smith 

484 

Bleakley  v.  Smith 

111 

Blew  V.  M'Lelland 

3 

Blore  V.  Sutton 

304 

Blosse  V.  Clanmorris 

222 

548 

Blossom  V.  Knox 

520 

Blount  V.  Blount 

37 

Blue  V.  Blue 

418 

Blundell  v.  Brettargh 

594 

Blyth  V.  Elmherst 

283 

Bodine  v.  Glading 

441 

Bodley  v.  Ferguson 

7 

Boehm  v.  Wood 

204 

283 

Bomier  v.  Caldwell 

448,  463 

469 

Bonner  v.  Campbell 

505 

r.  Johnston 

464 

Boone  v.  Eyre 

265 

Boothby  v.  Walker 

460 

Bortz  V.  Bortz 

6 

Bos  V.  Helsham 

541 

Boswell  V.  Mendham 

222 

Boston  V.  Babcock 

164 

V.  Bartlett 

447 

Bostwick  V.  Leach 

100,105 

106 

V.  Lewis 

351 

Boucher  i>.  Vanbuskirk 

441 

Boughton  V.  Jewell 

289 

Boulds  V.  Atkinson 

363 

Boults  V.  Mitchell 

184 

Bowen  v.  Irish 

444 

468 

V.  IMorris 

71 

Bower  v.  Cooper 

165 

Bowers  v.  Cator 

304 

Bowles  V.  Round 

77 

V.  Woodson 

112 

Bowyer  v.  Bright 

278 

Box  V.  Stanford 

118,  157 

359 

Boyd  V.  Cox 

13 

Boyer  v.  Blackwell 

280 

V.  Porter 

219 

Boyes  v.  Liddell 

283 

Boy  man  v.  Gutch 

221 

Boynton  v.  Hubbard 

879 

Boys  V.  Ancell 

533 

V.  Ayerst 

117 

Bozza  V.  Rome 

99 

,  115 

Brabstou  v.  Gibson 

496 

,497 

Paox 

Brackett  v.  Evans  108 

Bradbyn  v.  Ord  407 

Bradley  v.  Bosley  424,  427 

Bradshaw  v.  Bennett  44,  96 

V.  Bradshaw  460 

Bramley  v.  Alt  79 

V.  Teal  461 

Branch  r\  Doane  128 
Brandeis  v.  Newstadtl              97,  118,  139 

Brashier  v.  Gratz  181 

Brawdy  v.  Brawdy  231 

Breadalbane  v.  Chandos  12 
Breithaupt  v.  Thurmond       214,  218,  244 

Brereton  v.  Gamul  676 

Brewer  v.  Bessinger  19 

V.  Church  445 

Bridges  v.  Purcell  104 

Brill  V.  Stiles  4,  6 

Brink  v.  Morton  458 

Brocas'  case  265 

Brock  V.  Cook  141 

V.  Hidy  199,  457 

Brockenbrough  v.  Blythe  35,  36 

Broderick  v.  Broderick  361 

Brodie  v.  St.  Paul  138 

Bronson  v.  Cahill  18 

Brook  V.  Jones  86 

Brooke  v. 285 

Brookes  v.  Whitworth  565 

Brooks  V.  Wheelock  156,  176,  501 

Broome  v.  Monck  7,  8,  10 

Brothers  v.  Brothers  403 

Brown  v.  Bellows  111,  112 

V.  Budd  412 

V.  Frost  588 

V.  Gannon  268 

V.  Haff  422 

V.  Stadton  92 

V.  Witter  429 

Browning  v.  Clymer  25 

Bruck  V.  Lantz  4C0 

Bryan  v.  Duncan  398 

V.  Whistler  131 

Bryant  i-.  Busk  290 

V.  Hanibrick  524 

Bubier  v.  Bubier  157 

Buchanan  v.  Lorman  35 

Buck  V.  Lodge  460 

V.  McCaughtry  313 

V.  Pickwell  100 

Buckley  v.  Beardsley  99 

V.  Briggs  83 

Buckmaster  v.  Grundy  624 

V.  Ilarrop      87,  92,  144,  151 

Bulkley  v.  Wilford  393 

Bull  V.  Allen  665 

V.  Willard  5 

Bullett  V.  Worthington    •  5 

Bullin  V.  Fletcher  10 

Bullock  V.  Beemiss  320 

V.  Bullock  237 

Bumpus  V.  Plainer  500 

Burger  v.  Potter  468 

Burgess  v.  Wheate  430 


XX 


INDEX   TO    CASES   CITED. 


Page 

Paok 

Burgett  V.  Bissell 

100 

Carpenter  v.  Bailey 

268 

Burke  v.  Crosltie 

59 

V.  Blandford 

203 

Burkett  v.  Randall 

144 

V.  Brown 

473 

Burlington  v.  Boesler 

181 

V.  Lockhart  , 

111 

Burnell  v.  Brown 

35,  137, 

257 

Carr  v.  Hilton 

408 

Burns  v.  Allen 

15 

V.  Holliday 

368 

V.  Taylor 

20 

V.  Roach 

5 

Burrough  v.  Oakley 

460 

Carrington  v.  Roots 

101 

V.  Skinner 

93 

CarroUs  v.  Cox 

152 

Burt  V.  Cole 

85 

Carson  v.  Lucore 

30 

I'.  Porter 

398 

Carter  v.  Ely 

184 

Burton  v.  Johnson 

487 

V.  Harber 

493 

V.  Todd 

44 

V.  Toussaint 

98 

Bushell  V.  Bushell 

407 

Cartwright  v.  Gardner 

495 

Butcher  v.  Butcher 

151 

Cary  v.  Whitney 

7 

V.  Stapley 

408 

Casady  v.  Scallen 

457 

467 

Butler  V.  Buckingham 

55 

Casborne  v.  Barsham 

391 

V.  Haskell 

380 

Case  V.  Abeel 

400 

V.  Hicks 

404 

V.  Waterhouse 

117 

V.  Miller 

330 

Cassamajor  v.  Strode 

275 

278 

V.  O'Hear 

454 

Cassell  V.  Collins 

106 

V.  Stevens 

411 

Castleman  v.  Griffin 

347 

Buttemer  v.  Hayes 

302 

Cathcart  v.  Keirnaghan 

89 

Buttrick  v.  Holden 

29 

V.  Robinson    282, 

375,  422 

432 

Byassee  v.  Reese 

105 

Caton  V.  Caton 

138,  146 

148 

Byers  ;;.  Aiken 

474 

Cator  V.  Pembroke 

430 

Byrd  v.  Odem 

147 

Cattell  V.  Corrall 

309 

Byrne  v.  Romaine 

152 

Cattle  V.  Gamble 
Cave  V.  Allen 
Chad  wick  v.  Felt 

105 
394 
153 

C. 

V.  Maden 
Chamberlain  v.  Lee 

70 
252 

Caballero  v.  Slater 

21 

Chambers  v.  Griffiths 

279 

Cabe  V.  Dickson 

454 

V.  Lecompte 

118 

Cadraan  v.  Horner 

842 

445 

V.  Livermore 

371 

,444 

Cain  V.  McGuire 

105 

V.  Massey 

450 

Calcraft  v.  Roebuck 

42 

310 

V.  Tulane 

210 

Calef  V.  Foster 

68 

Champernowne  v.  Brooke 

42,  325, 

327, 

Calhoun  v.  Jester 

129 

407 

413 

Callaghan  v.  McCready 

97 

Champion  v.  Brown 

8,52 

Caller  v.  Hilty 

121 

V.  Rigby 

391 

394 

Callonel  v.  Briggs 

573 

Champlin  v.  Dotson 

496 

Calloway  v.  Witherspoon 

369 

v.Laytin323,325,327,407 

,413 

Calverly  v.  Williams 

12 

343 

Chandler  v.  Duane 

126 

Cameron  v.  Ward 

150 

V.  Marsh 

493 

Camfield  v.  Gilbert 

309 

V.  Spear 

130 

Campbell  i'.  Campbell 

151 

Chaplin  v.  Rogers 

98 

V.  Carchar 

183 

Chapman  v,  Ogden 

4 

V.  Gittings 

475 

Charlewood  v.  Bedford 

116 

,303 

V.  Home 

553 

Charnley  v.  Hansbury 

461 

V.  Pennsylvania 

401 

Chase  v.  Hogan 

316 

V.  Walker 

393 

399 

V.  Weston 

498 

Canada  v.  Canada 

250 

Cheney  v.  Cook 

14 

Canchar  Co. 

183 

Chesterman  v.  Gardner 

603 

Cane  v.  Baldwin 

219 

Child  V.  Abingdon 

35 

Canham  v.  Barry 

357 

V.  Godolphin 

464 

Cann  v.  Cann 

235,  259 

590 

Childress  v.  Hunt 

581 

Cannel  v.  McCIean 

524 

Chinn  v.  Heale 

313 

Cannon  v.  Mitchell 

92 

,274 

Chivall  V.  NichoUs 

407 

Capel  V.  Girdler 

7 

Christian  v.  Nixon 

31 

Capps  V.  Holt 

438 

,439 

Chubb  V.  Peckham 

452 

Capren  v.  Attleborough 

123 

Church  V.  Brown 

233 

Carleton  v.  Leighton 

380 

Church  V.  Farrow 

170 

Carlisle  v.  Fleming 

145 

154 

V.  Legeyt 

285 

INDEX   TO    CASES   CITED. 


XXI 


Claflin  V.  Carpenter 

105 

V.  Bell 

336, 

337 

Clark  V.  Condit 

495 

V.  Graliam 

66 

V.  Hackwell 

151 

V.  Hardgrove 

255 

V.  Redman 

215 

268 

V.  Sears 

448 

V.  Snelling 

499 

V.  Underwood 

358 

Clarke  v.  Elliot 

463 

V.  Faux 

244 

V.  Grant 

171 

V.  Hughes 

213 

V.  Locke 

257 

V.  Reins 

59 

V.  Rochester 

443 

V.  Wilson 

459 

Clary  v.  ]\Iarshall 

467 

Clason  V.  Bailey 

111 

Clayton  v.  Ashdown 

443 

V.  Freet 

341 

V.  Gregson 

164 

Cleavland  i'.  Burton 

327 

Clement  v.  Durgin 

122 

t'.  Evans 

428 

Clerk  V.  Wright 

141 

144 

Clifford  V.  Laughton 

282 

Clinan  v.  Cooke 

117 

148 

Clinton  v.  McKenzie 

120 

126 

Clitherall  v.  Ogilvie 

374 

Clowes  V.  Higginson 

166, 

440 

Clute  V.  Jones 

195 

V.  Robinson 

254 

268 

Cobb  V.  Hall 

505 

Coburn 

131 

134 

V.  Ware 

492 

Cochrane  v.  Willis 

339 

Cocker  v.  Cooper 

131 

Coe  V.  Harahan 

53 

269 

Coffey  V.  Coffey 

84 

580 

Coffin  V.  Cooper 

195 

Coffman  v.  Huck 

516 

Cole  V.  Gill 

4 

Coleman  v.  Garsigues 

65 

Coles  V.  Brown 

341 

V.  Trecothick        97,  117, 

151, 

370, 

380,  398 

400 

450 

Collard  v.  Groom 

312 

V.  Sampson 

223 

Collett  V.  Thompson 

575 

Collier  v.  Coates 

483 

V.  Jenkins 

281 

V.  Lanier 

825 

,326 

V.  McBean 

217 

CoUinge's  case 

554 

Collins  V.  Smith 

456 

,457 

V.  Vandener 

467 

,468 

Colson  V.  Thompson 

24 

Colt  V.  Beaumont 

438 

Colton  V.  Wilson 

291 

Combs  V.  Fisher 

489 

V.  Tarlton 

528 

Commonwealth  v.  Harnden 

85 

Conant  v.  Jackson 
Concord  Bank  v.  Gregg 
Condrey  v.  West 
Congdon  v.  Perry 
Connelly  v.  Pierce 
Conner  v.  Banks 
Connolly  v.  Parsons 
Converse  v.  Blumrich 
Conway  v.  Kingsworthy 
Conwell  i\  Claypool 
Cook  V.  Bean 

V.  Clay  worth 
V.  Cole 
V.  Stearns 
Cooke  V.  Toombs 
Cooper  V.  Denne 
V.  Emery 
V.  Pena 
Coote  V.  Coote 

V.  Mammon 
Coppee  V.  Spencer 
Coppin  V.  Fernyhough 
Cordage  v.  Cole 
Corder  v.  Morgan 
Cord  well  v.  Mackrill 
Cornwallis's  Case 
Cory  V.  Cory 
Cosens  v.  Bognor 
Coslake  v.  Till 
Coster  V.  Monroe 
V.  Turner 
Costigan  v.  Hastier 
Cottington  v.  Fletcher 
Cotton  V.  Ward 
Cottrell  V.  Watkins 
Couch  V.  IngersoU 
Covell  V.  Moseley 
Coward  v.  Odingsale 
Cowell  V.  Lippitt 
Cowgill  V.  Oxmantown 
Cowley  V.  Watts 
Cowper  V.  Bakewell 
Cox  V.  Chamberlain 

V.  Cox 

V.  King 

V.  Montgomery 

V.  Strode 
Coxe  V.  Halsted 
Craddock  v.  Aldridge 
V.  Cabiness 
V.  Shirly 
Crafts  V.  Aspinwall 
Craig  V.  Kittredge 
Crawford  v.  Barkley 
V.  Morris 
V.  Murphy 
V.  Paine 
Creamer  v.  Ogden 
Creigh  v.  Shatto 
Cripps  V.  Reade 
Crisdee  v.  Bolton 
Crockford  v.  Alexander 
Crofton  V.  Ormsby 
Crompton  v.  Melbourne 


Paqs 

369 

350 

494 

141 

473 

430 

77 

409 

190 

31 

456 

369 

370 

124,  131,  132 

117,  118 
212 
289 
441 
76 
413 
103 
301 
151 
212 
593 
415 
369 
438 

165,  186 
500 
251 

226,  328 
465 

195,  196 

215,  290 
243 
333 
188 
588 

221,  252 
16,  167 
40 
554 
150 
240 
352 
521 

681,  582 

264 

367 

256 

33 

339 

68 

177 

218 

444 

318 

214 

480 

531 

10 

300,  415 
425 


XXll 


INDEX   TO    CASES   CITED. 


PAtJE 


Croome  v.  Lediard 

171,  560 

Crosby  v.  Davis 

467 

V.  Percy 

227 

V.  Wadsworth 

101 

Crosse  v.  Lawrence 

272 

Crowden  v.  Austin 

77 

Cruise  v.  Cliristopher 

371 

Cruso  V.  Crisp 

74 

Crutclifield  v.  Haynes 

398 

Crutcliley  v.  Jerningliam 

460 

Cudbury  v.  Duval  j 

396 

Cuff?;.  Penn 

98 

Cullum  V.  Bank 

423 

Cummings  v.  Antes 

17 

Cunningham  v.  Fithian 

350 

V.  Morrill 

264 

V.  Sharp 

277 

Currie  v.  Cowles 

438 

Currier  i-.  Howard 

467 

Curtis  V.  Blair 

188 

V.  Created 

92 

V.  Mundy 

408 

V.  Price 

588 

Curtiss  V.  Hoyt 

137 

Cutler  V.  Pope 

105 

V.  Simons 

461 

Cutts  V.  Salmon 

78 

V.  Thodey 

202,  204,  258 

D. 

Daggett  V.  Daggett    . 
Dahoney  v.  Hall 
Daily  v.  Litchfield 
Dakin  v.  Cope 
Dalby  v.  Pullen 
Daly  I'.  Duggan 

V.  Osborne 
Damon  v.  Granby 
Daniel  v.  Hill 

V.  Mitchell 
Daniels  v.  Adams 

V.  Davidson 
V.  Lewis 
Darcus  v.  Crump 
Dare  v.  Tucker 
D 'Arras  v.  Kej^ser 
Darrington  v.  Borland 
Darris's  case 
Davidson  v.  Ernest 
V.  Little 
V.  Van  Pelt 
Davie  v.  Beardsham 
Davies  v.  Penton 
V.  Tilton 
Davinney  v.  Morris 
Davis 

V.  Farr 

V.  Jones 

V.  M'Vickers 

V.  Nisbett 

V.  Penton 

V.  Rogers 


211 

467 

457,  467 

42 

251,  277,  312 

22 

285 

123 

455 

356 

67 

415 

141,  420 

395 

289 

190 

581 

8 

508 

374 

269,  399 

7 

533 

171 

393 

405 

108 

60 

490 

20 

533 

34J 


Paoi 

Davis  V.  Stevens,  447 

V.  Symonds  176,  439,  548 

V.  Tarwater  349,  350 

V.  Townsend  107,  463 

Davison  v.  Davison  452 

Dawson  v.  Brinkman  292 

V.  Yates  317 

Day  V.  Newman  375,  452 

Dean  v.  Comstock  244 

V.  Dean  465 

Deane  v.  Rastron  371 

V.  Wade  19 

Dearborn  v.  Cross  173 

De  Hoghton  v.  Morey  564,  566 

Delane  v.  Moore  412 

Deller  r.  Prickett  95 

Dement  v.  Bonham  448 

Den  V.  Baldwin  120,  134 

V.  McKnight  395 

Dennis  v.  Loftin  412 

V.  M'Cagg  199 

Denny  v.  Wickliffe  438 

Denston  v.  Morris  423 

De  Bidder  v.  Schermerhorn  168 

Desloge  v.  Pearce  128 

Deven  i>.  Davenell  87 

Deverell  v.  Bolton  226,  227,  231,  309 

De  Vesme  v.  De  Vesme 

Dewar  v.  Maitland 

Dibble  v.  Jones 

Dick  V.  Cooper 

V.  Donald 

Dickenson  v.  Adams 

Dickey  v.  Lyon 

Dill  V.  Shahan 

Dimmock  v.  Hallett 

Dixon  V.  Astley 

Doar  V.  Gibbes 

Dobell  V.  Hutchinson 

V.  Stevens 
Dodd  V.  Seymour 
Dodge  V.  Clark 

V.  Hopkins 
Doe  V.  Ashburner 
V.  Edgar 
V.  Lufkin 
V.  Miller 
V.  Sandham 
Doggett  V.  Emerson 
Dolittle  V.  Eddy 
Doloret  v.  Rothschild 
Dominick  v.  Michael 
Donald  v.  Morton 
Donaldson  v.  McRoy 
Donovan  v.  Fricker 
Dooley  i'.  Watson 
Doolubdass  v.  RamloU 
Doremus  v.  Bond 
Dorn  V.  Dunham 
Dorr  V.  Munsell 
Dorsey  v.  Packwood 
Dorsey  v.  Wayman 
Doty  V.  Wilder 
Dover  v.  Kennerly 


44 

226 

445 

84 

57 

151 

410,  415 

324 

78,  347,  353,  582 

257,  459 

202,  455 

112,  113,  280,  299 

361 

450,  466 

457 

19,  477 

294 

193 

416 

462 

233 

343,  355,  388 

128 

183 

184,  256 

368 

77,  79 

47 

167,  434,  436 

79 

492 

505 

869 

18 

166 

85,  87,  89 

469 


INDEX   TO    CASES   CITED. 


XXlll 


Dowell  V.  Dew 

459 

Draper  i'.  Bryson 

408 

Drayton  v.  Drayton 

400 

Drewe  v.  Corp 

272 

V.  Hanson 

275 

Driggs  V.  Dwight 

522,528 

Drury  v.  Conner 

146 

Dryden  v.  Frost 

413 

Dubignon  i\  Loud 

30 

Dubois  V.  Bauni 

183 

Duckenfielcl  v.  Whichcott 

343 

Duddell  V.  Simpson 

261 

Duff  V.  Fisher 

457 

Dugan  V.  Cohuille 

458,  461 

Duke  V.  Shore 

30 

V.  Worthy 

94 

Dula  v.  Cowles 

317 

Dumars  v.  Miller 

525 

Duraphe  v.  Hay  ward 

61 

Dunbar  v.  Tredennick 

383 

Duncan  v.  Blair 

108 

V.  Cafe 

94 

V.  Tanner 

524 

Dunk  V.  Hunter 

294 

Dunlap  V.  Mitchell 

55 

V.  Wilson 

414 

Dunn  V.  Ferguson 

101 

V.  Moore 

159 

V.  Salter 

583 

Dunnica  v.  Sharp 

621 

Durand  v.  Sage 

448 

Durant  v.  Bacot 

340 

Durham,  Bishop  of 

662 

Durrett  v.  Simpson 

332 

Dutch  V.  Mott 

195 

Duvals  V.  Ross 

353 

Dwight )'.  Cutler 

213 

Dyer  v.  Hargrave 

35 

Dykes  v.  Blake 

279 

E. 


Eames  v.  Savage 

480 

Earl  V.  Baxter 

290 

V.  Halsey 

454 

Early  v.  Garrett 

483 

East  V.  Alford 

439 

V.  Hiester 

14 

Eastburn  v.  Wheeler 

143 

Eastern  v.  Hawkes 

433 

Easterwood  v.  Linton 

340 

Eaton  V.  Sanxter 

10,  400 

409 

V.  Whitaker  55,  139, 

141,  147 

151 

Edgarton  v.  Peckham 

102 

Edgell  V.  Day 

92 

Edman  v.  Allen 

207 

Edwards  v.  Burt 

381 

383 

V.  Handley 

445 

V.  Harvey 

548 

V.  Hiiickwar 

90 

V.  Hodding 

94 

V.  M'Leay 

280 

V.  Meyrick 

392, 

394 

Edwards  v.  Wickwar 
Egerton  v.  Jones 
Eichelberger  v.  Barnitz 
Ekins  V.  Treshara 
Elder  v.  Elder 
Eliason  v.  Henshaw 
Elliot  V.  Edwards 
Elliott  V.  Baleora 
Ellis  V.  Burden 
V.  Ellis 
V.  Hoskins 
Elworthy  v.  Billing 
Ely  V.  Stewart 
Emery  v.  Grocock 

V.  Wase 
Emmerson  v.  Heelis 
Emmons  v.  Kiger 
Engel  V.  Fitch 
English  V.  Benedict 
Eno  V.  Woodworth 
Enraught  v.  Fitzgerald 
Ensign  i'.  Kellogg 
Erskine  v.  Plummer 
Erwin  v.  Saunders 
Esdaile  v.  Stephenson 
Espy  L'.  Anderson 
Evans  v.  Brown 

V.  Kingsbury 
V.  Llewellyn 
V.  Prothero 
V.  Roberts 
Everett  v.  Towns 
Everson  v.  Kirtland 
Ewer  V.  Myrick 
Eyston  v.  Symonds 
Eyton  V.  Dicken 


Fagan  v.  Davison 
V.  Newson 
Fain  v.  Ayers 
Fairfax  v.  Muse 
Falkner  v.  Guild 
Fall  I'.  McMurdy 
Falls  V.  Carpenter 
Falmouth  v.  Thomas 
Fane  v.  Spencer 
Farebrother  v.  Simmons 
Farley  i-'.  Vaughn 
Farmers,  &c.  v.  Hunt 
Farwell  v.  Rogers 
Fashott  V.  Reed 
Faure  v.  Martin 
Feemster  v.  May 
Fellowes  v.  Gwydyr 
Fellows  V.  Fellows 
Fenlason  v.  Rackliff 
Fenner  v.  Tucker 
Fontiman  v.  Smith 
Fcnton  v.  Browne 
Feret  v.  Hill 
Ferguson  v.  Franklin 


Page 

236 

287 

400 

361 

11 

13 

229,  480 

164 

178,  215 

159 

27 

582 

346 

218,  236 

57,  60,  450,  453 

76,  87,  101 

296,  477 

623 

369 

21 

37 

432,  435 

105 

199 

37 

214,  215,  269 

374 

60,  332 

327 

97 

106 

441 

269 

493 

255 

221 


30, 


213,  215,  526 

358 
289 

77 
605 
274 
197 
102 
227 

89 

505 

209 

28,  206 

35 
258 

214,  208,  489 

356 

395 

155 

81 

131,  134 

40,  299,  590 

357 

582 


XXIV 


INDEX   TO    CASES   CITED. 


Page 

Ferguson  v.  Tadman 

205 

Feme  v.  Bullock 

151 

Ferron  v.  Sturgeon 

164 

Ferry  v.  Williams 

476 

Fessenden  v.  Musse}' 

114 

Field  V.  AVoodmancy 

264 

Fielder  v.  Higginson 

550 

Fildes  V.  Hooker 

228,  233 

297 

Finch  V.  Newnham 

418 

Fingal  v.  Ross 

151, 

161 

Finley  v.  Lynch 

277 

Finucane  v.  Kearney 

151 

Fisher  v.  Kay 

489 

V.  Salmon 

490 

V.  Wilson 

141 

V.  Worrall 

352 

Fisk  V.  Lacher 

404 

Fiske  V.  M'Gregory 

91 

Fitch  V.  Casey 

209 

V.  Fitch 

382 

Fitchburg  v.  Boston 

129 

Fitzgerald  v.  Fauconberge 

414 

Fitzhugh  V.  Wilcox 

368 

Fitzpatrick  v.  Featherstone 

350 

Flagg  V.  Mann 

411 

Fleetwood  v.  Green 

258 

283 

Fleming  v.  Gilbert 

199 

503 

V.  Harrison 

215 

Fletcher  v.  Button 

209 

V.  Carter 

294 

Flight  V.  Bolland 

63,  441 

443 

V.  Booth 

281 

FKnt  V.  Woodin 

85 

Flower  v.  Hartopp 

287 

309 

Fludyer  i'.  Cocker 

37,40 

256 

Flureau  v.  Thornhill 

623 

Foley  V.  AVyeth 

3 

Folsom  V.  Moore 

120 

124 

Foot  I'.  Newhaven 

127 

Forbes  v.  Deniston 

407 

V.  Hall 

407 

V.  Peacock 

550 

Ford  V.  Hitchcock 

369 

Fordyce  v.  Ford              181, 

182,  272 

,280 

Forster  v.  Hale 

148 

V.  Rowland 

117 

Fort  V.  Bunch 

408 

V.  Clarke 

224 

V.  New  Haven 

127 

Fosgate  v.  Herkimer 

5 

Foster  v.  Deacon 

205 

V.  Jared 

493 

Fowle  I'.  Freeman 

112 

Fox  V.  Birch 

464 

V.  Harding 

521 

V.  Mackreth 

364 

,405 

Foxlowe  V.  Amcoats 

204 

Frame  v.  Dawson 

153 

France  v.  France 

459 

Franchot  v.  Leach 

173 

Frank  v.  Harrington 

105 

Frank  v.  Purrington 

605 

Franklin  v.  Brownlow 

285 

Frear  v.  Hardenburgh 

19,  101 

,109 

Page 

Frederick  v.  Campbell 

330 

360 

Freebody  v.  Perry 

464 

Freer  v.  Hesse 

234,  274 

557 

French  v.  Bent 

22 

521 

Friess  v.  Rider 

199 

Fripp  V.  Fripp 

372 

Frisbee  v.  Hoffnagle 

491 

Frobock  v.  Edwards 

554 

Frost  V.  Brunson 

283 

V.  Raymond 

267 

Frostburg  v.  Thistle 

145 

Frye  v.  Shepler 

153 

Fulke  V.  Fulke 

19 

Fuller  V.  Bennett 

414 

V.  Dame 

397 

V.  Hovey 

447 

V.  Hubbard 

26,  32,  319 

482 

V.  Wilson 

355 

Funk  V.  M'Keoun 

48 

Fyler  v.  Givens 

99 

G. 


Gabriel  v.  Smith 

292 

Gaby  V.  Driver 

45,93 

Gaither  v.  Hetrick 

483 

Gale  V.  Archer 

184 

V.  Nixon 

110, 

505 

Galloway  v.  Barr 

554 

Gans  V.  Renshaw 

222,  232, 

504 

Garbrand  v.  Allen 

570 

Gardiner  v.  Corson 

248 

Gardner 

200 

V.  Armstrong 

65 

V.  Ogden 

435 

Garley  v.  Price 

209, 

244 

Garlock  v.  Lane 

495 

Garnett  v.  Macon 

182 

375 

V.  Yoe 

29 

187 

Garret  v.  Malone 

109 

Garrett  v.  Garrett 

395 

Garrow  v.  Brown 

367 

Garth  v.  Ward 

416 

Gaskell  v.  Durdin 

418 

Gaugmere 

367 

Gay  V.  Hancock 

265 

Gazley  v.  Price 

266 

268 

Gehr  v.  Hagerman 

317 

Gell  V.  Watson 

47 

George  v.  Pritchard 

230 

V.  Richardson 

371 

German  v.  Machin 

157 

Gerrish  v,  Towne 

177 

436 

Getchell  v.  Jewett 

111 

Gibbes  v.  Cobb 

408 

Gibbs  V.  Blackwell 

467 

Gibert  r.  Peteler 

354 

Gibson  v.  Clarke 

285 

459 

V.  D'Este 

354 

V.  Filer 

3 

V.  Jeyes 

394 

V.  Lair 

407 

V.  Patterson 

194 

INDEX   TO    CASES   CITED. 


XXV 


Gibson  v.  Spurrier 

Giddings  v.  Eastman 

Gilbert  v.  Trustees 

Gilchrist  v.  Stevenson 

Gill  V.  Bicknell 

Gillespie  v.  Battle  118, 

I'.  Moon 
Gillett  V.  Maynard 
Gilman  ;.■.  Schwartz 
Gilmore  v.  Johnston 
V.  Morgan 
V.  Wilbur 
V.  Wilson 
Gimell  i\  Adams 
Givens  v.  Calder      62,  112,  118, 
Glascock  V.  Eand 
Glazebrook  v.  Woodrow 
Glenn  v.  Thistle 
Goddard  v.  Divoll 

I'.  Mitchell 
Goelth  V.  White 
Gonpertz 

Goodall  V.  Pickford 
Gooday  v.  The  C.  &  S.  V.  R.R. 
Goodell  V.  Field  326, 

Goodhue  v.  Barnwell 
Goodisson  v.  Nunn 
Goodtitle  v.  Way 
Goodwin  v.  Clarke 
V.  Lynn 
V.  Lyon 
Goodwyn  v.  Lister 
Goom  V.  Afflalo 
V.  Clarke 
V.  Sims 
V.  Trevelyan 
Gordon  v.  Clarke 
Gore  V.  Gibson 

V.  McBrayer 
Gorham  v.  Reeves 
Gosbell  V.  Archer 
Goss  V.  Nugent 

V.  Thompson 
Gourlay  v.  Somerset 
Gowland  v.  De  Faria 
Graham  v.  Graham 
V.  Hendren 
V.  Nesmith 
V.  Oliver 
V.  Yeates 
Grandy  v.  Kittredge 
Granger  v.  Worms 
Grant  v.  Coombs 

V.  Craigmiles 
V.  Johnson 
V.  Munt 
Grantland  v.  Wight  '  243, 

Gray  v.  Dougherty 
Gray  v.  Gutteridge 

V.  Handkinson 
Green  v.  Armstrong 
V.  Courtland 
V.  Green 
V.  Lowes 


Page 

279 

400 

393 

463 

408 

70 

139 

493 

341 

320 

25 

458 

337 

130 

130 

68 

145 

152 

494 

248 

499 

395 

483 

316 

284 

584 

Co. 

425 

339 

341 

145 

248 

293 

592 

243 

189 

63 

111 

180 

592 

584 

585 

16 

180 

369 

104 

489, 

490 

90 

529 

173 

301 

508, 

510 

452, 

453 

370, 

380 

525 

334 

272 

278 

144 

28 

299 

332, 

333 

98, 

119 

246, 

264 

276, 

362 

273, 

329 

250 

93 

491 

100, 

125 

447 

482, 

485 

592 

Green  v.  IMcDonald 

496 

V.  Pulsford 

238 

V.  Winter 

403 

Greene  v.  Cook 

399 

r.  Reynolds 

249 

Greenhill  v.  Greenhill 

7 

Greenleaf  r.  Cook 

498 

Greenlee  v.  Greenlee 

176 

Greenlow  v.  King 

397 

Greenwood  v.  Ligon 

214 

,268 

Greer  v.  Caldwell 

341 

Gregg  V.  Von  Phul 

198 

Gregor  v.  Duncan 

374 

Gregory  v.  Mighell 

304 

V.  Wilson 

233 

Gregson  v.  Riddle 

181 

Greville  v.  Da  Costa 

481 

Griffin  v.  Coffey 

149 

V.  Reynolds 

520 

Griffith  V.  Depew 

320,  350 

,430 

V.  Eby 

347 

V.  Heaton 

47 

V.  Spratlcy 

373 

Griggs  IK  Woodriif 

32,  347 

427 

Griswold  v.  Smith 

327 

Growsock  v.  Smith 

43 

Guest  V.  Homfrey 

181 

,273 

Guier  v.  Kelley 

395 

Guitard  v.  Stoddard 

176 

Gunn  V.  Brantley 

399 

Gunnis  v.  Erhart 

90,91 

Gunter  v.  Halsey 

141 

Gwillim  V.  Stone 

296 

Guynne  v.  Heaton 

373 

H. 

Hackenbury  !>.  Carlisle 

391 

Hackney  v.  Jones 

32 

Haden  v.  Weare 

325 

Haight  V.  Childs 

463 

Haldeman  v.  Chambers 

454 

457 

Hale  V.  Grove 

51 

Hall  V.  Betty 

226,  247 

260 

V.  Hall 

118,  141 

148 

V.  Hallet 

391 

V.  Hardy 

59 

V.  Laver 

258 

V.  Smith 

298, 

409 

Hallett  V.  Collins 

379 

V.  Wylie 

293 

Hallewell  v.  Morrell 

478 

Halsey  v.  Grant 

278 

Halsmith  v.  Castay 

97 

Ham  I'.  Goodrich 

152 

Hamburgh  v.  Edsall 

81 

Hamilton  v.  Buckraaster 

225 

V.  Grant 

376 

V.  Hamilton 

82 

V.  Royse 

409 

Ilammatt  v.  Emerson 

345, 

359 

Hammer  v.  M'Eldowney 

440 

Hammersley  v.  De  Biel 

2 

Hamsmitb  v.  Espy 

216 

XXVI 


INDEX   TO    CASES   CITED. 


Hanbury  v.  Litchfield 
Hansbrough  v.  Peck 
Hanson  v.  Lake 
Hardacre  v.  Stewart 
Hardingbam  v.  Nicliolls 
Hardwicke  v.  Sandys 
V.  Vernon 
Hargreaves  v.  Rotbwell 
Harkness  v.  Remington 
Harnett  v.  Yielding 
Harrington  v.  Hoggart 
V.  Wheeler 
Harris  v.  Brown 
V.  Miller 
V.  Pepperell 
Harrison  v.  Coppard 

V.  Deramus 

V.  Talbot 

V.  Town 

V.  Wheeler 
Harrow  v.  Johnson 
Hart  V.  Brand 
Hartley  v.  Pehall 
Hartly  v.  Wilkinson 
Haryey  v.  Graham 

V.  Mountague 
V.  Phillips 
V.  Young 
Hasbrouck  v.  Tappen 
Hasker  v.  Sutton 
Hatch  V.  Cobb 
V.  Garza 
Hatcher  v.  Hatcher 
Hatton  V.  Gray 
Haughery  v.  Lee 
Havens  v.  Bush 
Hawkes  v.  Eastern 
Hawkins  v.  Holmes 
V.  Hunt 
V.  Obeen 
Hawley  v.  Cramer 
Haydon  v.  Bell 
Hayes  v.  Camyll 

V.  Richardson 
Haynes  v.  Crutchfield 
Hays  V.  Hall 

V.  Richardson 
Hayward  v.  Ellis 
Hazal  V.  Dunham 
Hazelrig  v.  Hutson 
Hazelton  v.  Putnam 
Head  v.  Egerton 
Heaphy  v.  Hill 
Hearn  v.  Tomlin 
Hearne  v.  Tenant 
Heaton  v.  Ferris 
Heckard  v.  Sayre 
Hedges  v.  Kerr 
Heeney  v.  Heeney 
Heirn  v.  Mill 
Helvenstein  v.  Higgason 
Hemmer  v.  Cooper 
Hennessey  v.  Andrews 
Hepburn  v.  Auld 


Paoe 

Paoe 

298 

Hepburn  v.  Dunlap            44 

,  65,  197,  255 

316 

Herbert's  case 

410 

554 

Herbert  v.  Odlin 

340 

92 

Heriot's,  &c.  v.  Gibson 

168 

577 

Herndon  v.  Venable 

623 

200 

Heme  v.  Meers 

371 

388 

Herrick  v.  Grow 

64 

414 

Hertford  v.  Boore 

254 

445 

Hertzog  v.  Hertzog 

525 

441 

Heth  V.  Wooldridge 

176 

46 

Heuer  v.  Rutkowski 

455 

181,  182,  189 

Hewit 

405 

100 

Hewitt  V.  Isham 

128 

104 

Hewlins  v.  Shipman 

127,  131 

840 

Heyer  v.  Deaves 

583 

549 

Heyward's  Case 

128 

438 

Hick  V.  Phillips 

446 

336,  337 

Hickman  v.  Grimes 

422 

450 

Higdon  V.  Thomas 

56,  111,  112 

182 

Higgins  V.  Shaw 

418 

141 

Higginson  v.  Clowes 

86,  92,  172 

550 

Hill  V.  Buckley 

274 

212 

V.  Fisher 

187 

305 

V.  Fiske 

249 

302 

V.  Hobart 

269,  484 

418 

V.  Meyers 

99 

290 

V.  Ressegien 

62,  209 

362 

V.  Spalding 

108 

605 

Hillary  v.  Waller 

236 

222 

Hilton  V.  Barrow 

464 

249,  458 

Hinde  v.  Whitehouse 

87 

351 

Hinder  v.  Streeter 

555 

109,  151,  157 

Hine  v.  Dodd 

407,  408,  414 

442,  443 

Hipmell  v.  Knight          183, 

200,  204,  206 

293 

Hitchcock  V.  Giddings 

491 

264 

Hitchens  v.  Nonques 

463 

308 

Hite  V.  Kier 

218 

116 

Hobson  V.  Bell 

197,  206 

458 

Hocker  v.  Gentry 

100,  118 

63 

Hodges 

168 

402 

Hodges  V.  King 

531 

232 

V.  Litchfield 

527,  575 

182,  183 

Hodsdon  v.  Smith 

493 

131 

Hoe  V.  Simmons 

454 

83 

Hoggart  V.  Scott 

254 

422,  501 

Holland  v.  Eyre 

13 

127 

V.  Hoyt 

108 

397 

Hollingshead  v.  McKenzie 

118 

77 

Hollis  V.  Whiteing 

304 

439 

Holman  v.  Crane 

21 

120 

V.  Vallego 

469 

577 

Holmes  v.  Holmes 

187 

203 

Holt  V.  Clemmons 

61 

510 

V.  Payne 

61 

189 

Homer  v.  Purser 

428 

126 

Hone  V.  WoodrufiT 

165 

189,  197 

Hood  V.  Bowman 

145,  151, 153 

215 

V.  Fahnestock 

428 

124 

V.  Huff" 

35 

170,  409 

Hook  V.  Nebeker 

30 

492 

Hooker  v.  Pynchon 

435,  467 

346 

Hopcraft  v.  Hickman 

453 

412 

Hope  V.  Ellis 

295 

195,  276,  312 

Hopkins  v.  Grazebrook 

622,  527 

INDEX   TO    CASES    CITED. 


XXVll 


Hopkins  i;.  Lee 

524 

1. 

V.  M'Laren 

417 

Page 

V.  Yowell 

624 

Icely  V.  Grew 

537 

Hopson  V.  Trevor 

539 

Ide  I'.  Stanton 

111 

Hord  V.  Bowman 

145 

Inge  I'.  Birmingham 

230 

Horford  v.  Wilson 

28 

I'.  Lippinpwell 

175 

Horn  V.  Denton 

581 

Ingersoll  v.  Horton 

505 

Horniblow  v.  Shirley 

273 

Innis  t'.  ]\rCrummin 

335 

Hough  I'.  Hunt 

375 

Irions  v.  Cook 

67 

V.  Richardson    343, 

345,  346,  348, 

Irvin  V.  Gregory 

458 

355,  360,  362 

V.  Smith 

420 

Houghtailing  v.  Houghtaili 

ng       120,  134 

Irwin  V.  Harris 

403 

House  V.  Dexter 

468 

Ishmael  v.  Parker 

24 

Howard  v.  Castle 

77 

Isler  V.  Egger 

492 

V.  Hopkins 

536 

Ives  V.  Bank 

320 

V.  Richeson 

6 

Ivory  V.  Murphy 

111 

112 

V.  Shaw 

507 

V.  Witham 

498 

Howe  V.  Dewing 

87 

J. 

V.  Palmer 

98 

Howell  V.  Baker 

394 

Jackson  v.  Catlin 

87 

Howes  V.  Barker 

12 

V.  Curtwright 

151 

Howland  v.  Leach 

475,  503 

V.  Delacroix 

294 

V.  Norris 

44,276 

V.  Given 

408 

Howorth  V.  Deem 

410 

V.  Gray 

149 

Hubbard  v.  Gray 

505 

V.  Keisselbrach 

294 

V.  Smith 

411 

V.  Ligon 

183 

Huddleston  v.  Briscoe 

13,  15,  16 

V.  Moncrief 

294 

Hudson  V.  Bartram 

199 

V.  Roe 

577 

V.  Hudson 

400 

V.  Warren 

582 

,588 

V.  Swift 

484 

Jacobs  V.  Peterborough 

148 

,  156 

Hughes 

583 

James  v.  Shore 

76 

V.  Garth 

576 

Jamieson  v.  Millemann 

130 

V.  Parke 

295 

Janaway 

64 

V.  Wynne 

562 

Jane  Hunter 

296 

Hull  V.  Cunningham 

329,  333 

January  v.  Martin 

39 

,372 

V.  Peer 

469 

Jarmain  v.  Egelstone 

562 

V.  Sturdivant 

435,  448 

Jarrett  v.  Johnson 

170 

V.  Vaughan 

510,  511 

Jarvis  v.  Palmer 

359 

Hulme  V.  Heygate 

9 

Jenison  v.  Hapgood 

395 

Humber 

214 

Jenkes  v.  White 

105 

Hume  V.  Pocock 

222,  255,  356 

Jenkins  v.  Eldredge 

391 

,409 

Humphries  v.  Horn 

48 

V.  Frink 

83 

Hundley  v.  Lyons 

35,  336 

V.  Hogg 

79 

Hunt  V.  Coe 

145 

V.  Parkinson 

592 

V.  Frost 

78 

V.  Spooner 

65 

V.  Gregg 

87 

Jenness  v.  Parker 

498 

V.  Livermore 

488,  489 

Jennings  v.  Broughton 

348 

V.  Eobinson 

6 

V.  Hopton 

284 

V.  Rousmaniere 

324 

V.  Moore 

413 

V.  Rowland 

398 

V.  Selleck 

416 

V.  Silk 

482 

Jerrard  v.  Saunders 

412 

V.  Thorn 

53 

Jervis  v.  Smith 

29,  118 

,145 

Hunter  v.  Geridy 

350 

Jervoise  v.  Clarke 

582 

V.  O'Neil 

214 

V.  Northumberland 

224 

Hutchings  v.  Moore 

265 

Jeudwine  v.  Alcock 

287 

Hutchins  v.  King 

100 

John  V.  Jenkins 

293 

Huntington  v.  Rogers 

444 

Johns  V.  Reardon 

412 

Hurst  V.  Means 

257 

Johnson  v.  Collins 

32,53 

,215 

Hussey  v.  Roquemore 

174 

V.  Craig 

99 

Hutchings  v.  5loore 

336 

V.  Evans 

481 

Hutchinson  v.  Brown 

347,  370 

V.  Jackson 

28 

V.  Morley 

352 

V.  Johnson 

331 

481 

Hyde  v.  Wroughton 

286 

V.  Jones 

489 

XXVIU 


INDEX   TO    CASES    CITED. 


Johnson  v.  JI'Gruder^ 
V.  Medlicott 
V.  Nott 
I'.  Roberts 
V.  Ronald 
Johnston  v.  Beard 
V.  Glancy 
V.  Johnston 
Joliflfe  V.  Hite 
Jolland  V.  Stainbridge 
Jones  V.  Barkley 
V.  Belt 
V.  Caswell 
V.  Edney 
V.  Flint 
.V.  Gardner 
V.  Lewis 
V.  Mudd 
V.  Nanney 
V.  Peterman 
V.  Powles 
V.  Price 
V.  Robbins 
V.  Shackleford 
V.  Smith 
V.  Taylor 
V.  Thomas 
V.  Wood 
Jonghaus  v.  McCormick 
Jordan  v.  Pollock 
V.  Sawkins 
Judd  V.  Ensign 
Judge  V.  Wilkins 
Judson  V.  Wass 
Junction  v.  Harpold 


K. 

Kane  v.  Hood 
Kearney  v.  Taylor 
Keating  v.  Price 
Keats  V.  Rector 
Keegan  v.  Williams  ] 
Keen  v.  Stuckely 
Kellogg  V.  Kellogg 
Kellums  v.  Richardson 
Kelly  V.  Bradford 

V.  Dutch  Church 
Kemeys  v.  Proctor 
Kempshall  v.  Stone 
Kennedy  v.  Kennedy 
V.  Lee 
V.  Panama 
Kester  v.  Rockel 
Ketchum  v.  Evertson 
Ketchum  v.  Stout 
Kilburn  v.  Ritchie 
Killick  V.  Flexney 
Kinard  v.  Hiers 
Kindley  v.  Gray 
Kine  v.  Balfe 
King  V.  Bardeau 
V.  Hamilton 


Page 

65,  67,  70,  458 

368 

380 

90 

109 

473 

153,  157 

468 

329 

407 

475 

501 

81,  84,  389 

299 

106 

220,  249 

561 

37,  39 

74,  87,  92 

157 

412 

194 

191 

439 

410 

220,  351 

392 

5 

221 

408 

303 

24 

372 

25,  246,  268 

98 


243,  248 

85 
199 
141 

13 

451 

6 

140 

212,  456,  521 

521 

87 
249 
398 

16 
323 
35,38 
267 
271 
6 
397 
391 
253 
305 
313 
425 


Pasb 

King  V.  Hamlet  383 

V.  Hanna  109 

V.  Horndon  131 

V.  King  258,  551 

V.  Morford  194,  407,  445 

V.  Smith  145 

V.  Turner  64 

V.  Wilson  208 

Kingsley  v.  Young  219 

Kingston  v.  Preston  262 

lunney  v.  Osborne  605 

V.  Watts  521 

Kinsman  i\  Kinsman  419 

Kirby  ?•.  Harrison  4,  184 

Kirkman  v.  Kenyon  469 

Kirtland  v.  Pounsett  510 

Kitchen  v.  Herring  166,  449 

Klyce  V.  Broyles  457 

Knapp  V.  Lee  497 

KnatchbuU  v.  Grueber  210,  280,  426 

Knight  V.  Crockford  111 

V.  Knight  141 

V.  N.E.  Worsted  Co.  263 

Knotts  V.  Geiger  408 

Knowles  v.  Shapleigh  609 

Koger  V.  Lane  255 


343, 


Lacon  v.  Mertin 
Lacy  V.  Hall 
Latferty  v.  Whitesides 
Laight  V.  Pell 
Laird  v.  Pim 
Lakin  v.  Ames 
Lamas  v.  Bayly 
Lambert  v.  Bainton 
Lampman  v.  Cochran 
Landsdowne  v.  Landsdowne 
Lane  i\  Ready 
V.  Tidhall 
Lang  V.  Gale 
Langford  v.  Pitt 
Langstroth  v.  Toulmin 
Lanier  v.  Hill 
Lanyon  v.  Toogood 
Lathrop  v.  Hoyt 
Lau  V.  Mumma 
Laurens  v.  Lucas 
Laverty  v.  Hall 

V.  Moore 
Lavery  v.  Turley 
Lawes  v.  Bennett 
V.  Gibson 
Lawless  v.  Mansfield 
Lawrence  v.  Chase 

V.  Dole  209, 

Lawrenson  v.  Butler 
Laythourp  v.  Bryant 
Leach  v.  MuUett 
Leak  v.  Morrice 
Lear  v.  Chouleau 
Leas  V.  Eidson 


151 

261 

3 

585 

476,  518 

123 

104 

405 

534 

323 

457 

255 

206 

9 

485 

345,  428 

242 

149 

3 

218 

ISO- 

407 

140 

8 

294 

393 

618 

243,  268 

443 

113,  228 

312 

161 

444,  449 

329,  341 


INDEX  TO    CASES   CITED. 


XXIX 


Page 

Lechmere  r.  Brasier  586 

Ledford  v.  Ferrell  107 

Lee  &  Hemingway  23 

V.  Dean  351,  5*26 

V.  Lee  7'J 

V.  Mahoney  114 

V.  Munn  46,  93 

Leggett  V.  Edwards  102 

Leland's  Appeal  402 

Lenehan  v.  McCabe  413,  414 

Le  Neve  v.  Le  Neve  407 

Lennon  v.  Napper  432 

Leonard  ik  Leonard  346,  367 

V.  Vredenburg  98 

Le  Koy  f.  Beard  68 

Lesley's  case  404 

Leslie  v.  Tompson  276 

Lessee  v.  Dekeyne  91 

Lester  v.  Bartlett  107 

V.  Mahan  371 

Lesturgeom  v.  Martin  284 

Levi  V.  Levi  81 

Levy  V.  Lindo  202 

V.  Merrill  99 

V.  Pendergrass  75 

Lewers  v.  Shaftesbury  439 

Lewin  v.  Guest  251,  274 

Lewis  V.  Clifton  308 

V.  Herndon  291 

V.  Lechmere  186,  452 

V.  Loxhaui  553 

V.  INIcLemore  343,  344 

V.  McMillen  316 

Liggins  V.  Inge       120,  123,  125,  126,  131 

Lightfoot  V.  Heron  376 

Lincoln  v.  Arcedeckne  240 

Lindsay  v.  Lynch  304,  465 

Lingle  v.  Clemens           '  151 

Linscott  V.  Buck  7 

V.  M'Intire  139 

Litchfield  v.  Cudworth  400 

Little  V.  Paddleford  214,  268 

V.  Pearson  513 

Livingston  v.  Peru  357,  566 

Lloyd  I).  CoUett  95,  181,  200 

V.  Crispe  233 

V.  Farrell  266 

V.  Jewell  498 

V.  Johnes  587 

V.  Lloyd  27 

Lock  V.  Furzee  523 

Lockey  v.  Lockey  141 

Logan  V.  M'Ginnis  449 

V.  Wienholt  435 

London  Bridge  237 

V.  Richmond  447 

London  v.  Winter  442 

Long  V.  Allen  495 

V.  Collier  221,  311,  561 

V.  Israel  555 

Loomis  V.  Loomis  399 

Lord  V.  Stephens  205,  449 

V.  Underdunck  62 


Lorillard  )•.  Silver 

166 

Lovcring  v.  Buck, 

341 

Low  V.  Alarshall 

243 

Lowder  i\  Nodiag 

491 

Lowe  V.  Manners 

286 

Lowell  V.  Mutual 

430 

Lowes  V.  Lush 

236 

Lowry  r.  DufFerin 

112 

Lowther  v.  Carlton 

408 

i".  Carril 

303 

v.  Lowther 

70 

Loyd  r.  Griffith 

224 

V.  Malone 

81 

Lubiu  V.  Lightbody 

285 

Lucas  V.  Heaton 

520 

Luce  V.  Cooley 

120 

Luckett  V.  AVilliamson  144,  195, 

456,  458 

Ludlow  V.  Grayall 

430 

Lufkin  V.  Nunn 

416 

Lull  V.  Stone 

29 

Limipkin  i>.  Jolmson 

141 

Lumsden  v.  Fraser 

10 

Lutweller  v.  Lumell 

203 

Lj'man  v.  United  Ins.  Co. 

11 

V.  United  States  Bank 

31 

Lyndsay  v.  Lynch 

153 

Lynn  v.  Lynn 

16 

Lyon 

583 

V.  Annable 

319 

V.  Jones 

400 

Lysney  v.  Selby 

361 

M. 


Maberly  v.  Eobins 

220 

Mackrell  v.  Hunt 

581 

Macubin  v.  Clarkson 

160 

Maddeford  v.  Austurick 

372 

Maddox  v.  Maddox 

413 

Madeira  v.  Hopkins 

19, 

581 

Magennis  v.  Fallon 

362 

Magoffin  I'.  Holt 

183 

Mahaiwe  v.  Culver 

218 

Mahana  v.  Blunt 

118 

145 

Main  v.  Melbourn 

151 

Majoribanks  v.  Hovenden 

413 

414 

Malawn  v.  Ammon 

525 

Maling  v.  Hill 

235 

Malins  v.  Brown 

149 

V.  Freeman 

334 

Mallory  v.  Mallory 

440 

Manley  v.  Crenionini 

24 

Mann  v.  Betterly 

367 

370 

V.  Pearson 

330 

Manning 

42 

V.  Brown 

494 

Mannsell  v.  Wliite 

3 

Mapps  V.  Sharpe 

82 

Marcey  v.  Darling 

137 

Margravine  v.  Noel 

258,  283 

551 

Markham  v.  Stevenson 

28 

Marlow  v.  Marlow 

243 

XXX 


INDEX   TO    CASES    CITED. 


Page 

Marlow  v.  Smith  547 

Marsh  405 

Marsh  v.  Hyde  98 

V.  Wyckoff  193,  483 

Marshall  v.  Ferguson  105 

V.  Haney  524 

Marston  v.  Roe  7,  8,  65 

Martin  v.  McCormick  481 

V.  Mitchell  57,  60,  376,  443 

V.  Pycroft  104 

V.  Kaulett  81 

V.  Smith             ■  474,  478 

Maryland  v.  Schroeder  148 

Mason  v.  Armitage  326,  446 

V.  Ciiambers  264 

V.  Crosby  68 

V.  Martin  399,  402 

V.  Wallace  191,  193 

Massey  v.  M'lhvain  141 

Massie  v.  Watts  435 

Matthews  v.  Dana  284 

V.  Demeritt  412 

Mattock  V.  Kinglake  476 

Maure  v.  HefiTerman  71 

Maxwell  v.  Wallace  107 

Mayo  V.  Purcell  455 

Mays  V.  Swope  256 

M'Aninch  v.  Laughlin  324 

M'Burney  v.  Wellman  144 

M'Cann  v.  Janes  60 

McCants  v.  Bee  395 

McClane  v.  White  431 

McClure  v.  McClure  139 

McComb  V.  Wright  76,  87,  283,  485 

McConnel  v.  Dunlap  526 

M' Cotter  v.  New  York  14 

McCracken  v.  Sanders  48 

McCraw  v.  Gwin  61 

McCray  v.  McCray  463 

McCrea  v.  Purmort  111 

McCreight  v.  Aiken  367 

M'Cue  V.  Smith  140 

M'Culloch  V.  Dawson  486,  487 

M'Cullougli  V.  M'CuUough  469 

McDaniel  v.  Grace  325 

M'Derraed  (;.  M'Cartland  64 

McDonald  v.  Fithian  350 

McDowell  V.  Simras  80 

McElderry  v.  Shipley  339 

McFadgan  v.  Eisensmidt  289 

McFarland  v.  Matins  18 

McFerrin  v.  Taylor  343 

M'Garvey  v.  Hall  432 

McGehee  v.  Gindrat  408 

V.  Jones  211 

McKay  v.  Carrington  314 

M'Kechine  v.  Sterhng  7 

McKee  v.  Barley  569 

V.  Brandon  524 

V.  Phillips  151 

McKibbin  v.  Brown  449 

McKinney  v.  Pinchard  371,  370 

McKnight  v.  Dunlop  520 


Page 

M'Kowen  v.  McDonald  159 

M'Koy  V.  Chiles  550 

McLane  v.  Rush  264 

McLaughlan  v.  Shepherd  409 

M'Lelland  v.  Creswell  330 

McMahan  v.  Davis  24 

McMechan  v.  Griffing  408,  412 

McMeekin  v.  Edmund  389 

McMuUen  v.  Riley  103 

M'Nally  v.  Shobe  47 

McNamara  v.  Arthur  691 

V.  M'llhenny  625 

V.  Williams  668 

McNeal  v.  Jones  152 

McQueen  v.  Chouteau  6 

V.  Farquhar  218,  274 

Mc Williams  v.  Long  447,  457 

Mead  v.  Fox  247,  503 

V.  Orrery  412 

V.  Randolph  449 

Meadows  v.  Meadows  87,  89,  116 

Meclielen  v.  Wallace  104 

Meehan  v.  Williams  411 

Meek  v.  Waltlihall  467 

Meredith  v.  Macoss  66 

V.  Naish  151 

Merithew  v.  Andrews               .  407 

Merkle  v.  Wehrheim  604 

Merry  v.  Abney  411 

Mesnard  v.  Aldridge  92 

Metcalfe  v.  Dallam  219 

V.  Fowler  676 

V.  Pulvertoft  417 

Metropolitan  v.  Godfrey  162 

Meux  V.  Maltby  419 

Meynell  v.  Surtees  14,  15 

Middleton  v.  Dubuque  413 

V.  Wilson  440 

Midland  v.  Westcomb  651 

Miles  V.  Langley  411 

Mill  V.  Hill  411 

Millar  ;;.  Campbell  78 

Milldam  v.  Hovey  263 

Miller  v.  Argyle  256 

V.  Auburn  131 

V.  Blandist  151 

V.  Collyer  14 

V.  Corey  7 

V.  Irvine  99 

V.  Pelletier  87 

V.  Sherry  417 

Mllligan  v.  Cooke  298 

Mills  V.  Heeney  583 

V.  Oddy  95,  228 

V.  Van  Voorhies  465 

Millspaugh  v.  McBride  686 

Milner  v.  Mills  7,  8 

M  lines  V.  Grey  453 

Milnor  v.  Willard  183,  189 

Milward  v.  Thanet  182 

Minchin  v.  Nance  42 

Minet  v.  Emerick  505 

Minor  287 


INDEX   TO    CASES   CITED. 


XXXI 


Minor  v.  Edwards 
Minton  v.  Kirkwood 
Minturn  r.  Allen 

V.  Seymour 
Mitchell  i*.  Hayne 
V.  Wilson 
Mix  V.  Ellsworth 
Moale  V.  Buchanan 
Mobley  v.  Keys 
Moggridge  v.  Jones 
Molineux 
Molony  v.  Kernan 
Monck  r.  Huskisson 
Moncrieff  v.  Goldsborough 
Money  penny  v.  Bristow 
Montesquieu  v.  Sandys 
Montgomery  v.  Dorion 
Moore  v.  Anders 

V.  Beasley 

V.  Blake 

V.  Burrows 

r.  Edwards 

V.  Marrable 

V.  M'Allister 

V.  Rawson 

V.  Small 

V.  Smith 
Morange  v.  Morris 
More  V.  Mayhew 

V.  Sniedburgh 
Moreland  v.  Lemasters 
Morgan 

V.  Herrick 
V.  Holford 
V.  Morgan 
V.  Scott 
V.  Shaw 
V.  Smith 
Morley  v.  Cook 
Morphett  v.  Jones 
Morris  v.  Emmett 

V.  Hogle 

V.  Hoyt 

V.  Kearsley 

V.  McNeil 

V.  Timmins 

V.  Wliitcher 
Morrison  v.  N'Leod 

V.  Peay 
Morse  v.  Copeland 

V.  Merest 
Morss  V.  Elmendorf      249, 

Mortimer  v.  Bell 

V.  Mortlock 
V.  Orchard 

Mortlock  V.  BuUer        195, 

Morton  v.  Dean 

V.  liidgeway 
Moseley  v.  Hide 
Moss  V.  Matthews 
Mountford  v.  Scott 
Moyl  V.  Home 


Page 

200 

217 

75 

442 

92 

188 

487 

116,  146 

489 

495 

405 

416 

37 

77 

479 

395 

66 

5 

141 

180 

467,  468 

306 

302 

139 

123,  131 

158 

318 

278 

407 

254,  257 

147 

405 

458,  467,  468 

167 

63,  567 

191 

48,  284,  463 

492 

258 

305 

329,  335 

418 

448,  457 

292 

592 

308 

5 

368 

444 

125 

23 

333,  334,  423, 

424 

78 

465 

148,  305,  465 

277,  281,  323, 

439,  444,  446 

88 

48 

238 

95,  196,  284 

414 

161 


Mullin  V.  Bloomer 

270, 

318 

456 

Mumfbrd  v.  Whitney     120, 

126, 

131 

134 

Mundortri'.  Howard 

1 

461 

Mundy  v.  Culver 

532 

^lundy  V.  Joliffe 

148 

Munson  i'.  Sears 

53 

Murdock's  case 

400 

jMurphy  i'.  Lockwood 

606 

V.  Mariand 

3 

I'.  M'Vicker 

266 

V.  Officer 

360 

Murray  i'.  Currie 

6?.0 

V.  Lylburn 

417 

V.  Palmer 

47 

Muskett  V.  Hill 

129 

Musselman  i\  Eshleman 

401 

Myers 

396 

V.  Aikman 

489 

V.  Byerly 

159 

Mynn  v.  Jolifie 

32 

N. 


Nantz  V.  Lobar 

40 

Nason  i'.  Woodward 

820 

Natchez  v.  Miner 

500 

National  Fire  Ins.  Co.  v. 

Loomis   78, 

584 

Neatherly  v.  Ripley 

463 

Neelson  v.  Sanboroe 

98 

Nelson  v.  Aldridge 

92 

V.  Carrington 

329 

V.  Matthews 

329 

336 

V.  Nelson 

102, 

387 

V.  Worrall 

150 

Nesbit  V.  Moore 

437 

Nettleston  v.  Sikes 

105, 

132 

Newall  I'.  Smith 

554 

Newby  v.  Hinshaw 

56 

V.  Paynter 

229 

Newhara  v.  May 

249,  354 

423 

Newman  v.  Chapman 

417 

V.  Rogers 

186 

Newsome  v.  Graham 

480 

Newton  v.  Swazey 

118, 

141 

Nicholl  V.  Chambers 

259 

Nichols  V.  Johnson 

116 

Nicliolson  V.  Mifflin 

66 

Nickerson  v.  Saunders 

23 

Nicloson  V.  Wordsworth 

551 

Nicol  V.  Carr 

456 

Nixon  V.  Hyserott 

267 

Nodine  v.  Greenfield 

183 

195 

Noland  v.  Pope 

562 

Nolen  V.  Gwynn 

412 

Norfolk  V.  Worthy 

336 

Norton  v.  Hathaway 

351 

V.  Herron 

71 

Notson  ?;.  Barrett 

309 

Nott  V.  Hill 

380 

Nuini  V.  Fabian 

306 

Nunnaliy  r.  White 

53 

Nurse  v.  Barns 

522 

Nutting  V.  Dickinson 

108 

XXXll 


INDEX  TO    CASES   CITED. 


Page 


o. 


Oatman  v.  Walker 

82, 

519 

O'Donghue  i\  Jones 

489 

Ogilvie  V.  Foljambe 

91,  111, 

227 

Ogle  V.  M'Dowell 

525 

Oldfield  V.  Stevenson 

502 

Oliver  v.  Court 

85, 

386 

Olmstead  v.  Miles 

100 

O'Neill 

397 

O'Reilly  i\  Thompson 

144 

153 

Orme  v.  Broughton 

46, 

528 

Ormond  v.  Anderson 

14 

O'Kourke  v.  Percival 

299 

Osbaldeston  v.  Askew 

234 

Osborne  v.  Bremar 

330 

Osgood  V.  Franklin 

374 

Osterman  v.  Baldwin 

4 

Otis  V.  Hall 

125 

Ovey  V.  Leighton 

577 

Owen  V.  Davies 

442 

?'.  Frink 

23 

469 

V.  Thomas 

97 

Owens  V.  Hall 

469 

0 wings  V.  Baldwin 

209 

214 

Oxenham  v.  Esdaile 

430 

Packard  v.  Eichardson 

99 

Page  V.  Adam 

225, 

819 

V.  Becker 

51 

V.  Cole 

3 

V.  Hughes 

183, 

191 

Paine  v.  Meller 

201 

Painter  v.  Henderson 

395, 

400 

Palmer  v.  Temple 

538 

Parham  v.  Randolph 

812, 

500 

Park  V.  Joliuson          21,  59, 

248, 

451, 

469 

Parker  v.  Frith 

184 

V.  Grant 

364 

V.  Parker 

462 

V.  Parmelee        209, 

245, 

267, 

268 

V.  Perkins 

26, 

246 

V.  Staniland 

105 

V.  Wells 

151 

Parkhurst  v.  Van  Cortlandt 

2, 

111, 

157, 
161 

Parks  V.  Brooks 

428 

V.  Jackson 

420 

Parret  v.  Shaubhut 

364 

Parrill  v.  M'ffinley 

112 

458 

Parry  v.  Frame 

298 

Parsons  v.  Camp 

121 

Partridge  i'.  Usborne 

585 

Pasley  v.  Freeman 

362 

Patching  v.  Dubbins 

592 

V.  Yeaton 

468 

Paterson  v.  Long 

231 

565 

Paton  V.  Rogers 

195 

,278 

284 

Patterson  v.  Martz 

183 

V.  Stoddard 

507 

Fatten  V.  England 

499 

Patton  V.  M'Clure 

Paul  V.  Squibb 
V.  Brown 

Pawle  V.  Gunn 

Payne  v.  Atterbury 
V.  Cave 

Peacock  v.  Evans 

Pearce  v.  Pearce 

PearsoU  v.  Frazer 

Pearson  ;;.  Williams 

Redder 

Peers  v.  Barnett 

Pell  V.  Northliampton 

Pember  v.  Matliers 

Pendergast  v.  Meserve 

Penn  v.  Baltimore 
V.  Hayward 

Pennock  v.  Ela 

V.  Tilford 

Pcnnock's  Appeal 

Penns^ivania  v.  Delaware 

Perkins  v.  Rice 

V.  Wright 

Perring  v.  Brooke 

Perry  v.  Fitzhugh 
V.  Rice 
V.  Wheeler 

Peters  v.  McKeon 
V.  Phillips 

Peterson  v.  Ay  res 
V.  Dickey 
V.  Orr 

Pettus  V.  Smith 

Philadelphia  v.  Lehigh 

Phillips  V.  Bucks 

V.  Feilding 
V.  Hooker 
V.  Hunnewell 
V.  Longstreth 
V.  Soule 
V.  Thompson 

Phippen  v.  Stickney 

Phyfe  V.  Warden 

Piatt  V.  Oliver 

Pickering  v.  Pickering 

Pidcock  i\  Bishop 

Pierce  v.  Harrington 
V.  Nichols 

Pierrepont  v.  Barnard 

Pike  V.  Butler 
V.  Morey 

Pile  V.  Shannon 

Pillage  V.  Armitage 

Pilmore  v.  Hood 

Pinckard  v.  Pinckard 
V.  Woods 

Pincker  v.  Curteis 

Pinckney  v.  Hagadorn 

Pipkin  V.  James 

Pitcher  v.  Livingston 

Pitchers  v.  Edney 

Pitman  v.  Poor 

Pitt  V.  Petway 

Plummer  v.  Owens 


Page 

157 

409 

474 

141 

430 

75 

380,  383 

585 

203 

22 

405 

255 

438,  589 

301 

28 

484 

485 

448 

353 

80 

431 

48,  352 

445 

293 

129 

26,  486 

187 

521 

436 

520 

23 

6 

429 

469 

356 

245,  574 

428 

99 

174 

454 

105,  145,  159 

81,82 

360 

81 

444 

364 

55 

196,  254 

100,  125,  129 

300 

148 

343 

363 

361 

462 

356 

182,  199 

86,87 

25,  257 

521 

96 

126 

400 

166 


INDEX   TO    CASES   CITED. 


XXXIII 


Poag  V.  Sandifer 
Pollard  V.  Kinner 
Pomeroy  v.  Drury 
Pomroy  v.  Stevens 
Poole  V.  Hill 

V.  Slier<?old 
Poorman  v.  Kilgore 
Pope  V.  Great,  &o. 

V.  Henry 
Popham  V.  Eyre 
Popkin  V.  James 
Popple  V.  Henson 
Pordage  v.  Cole 
Portarlington  v.  Soulby 
Porter  v.  Dougherty 
V.  Ewlng 
V.  Noyes 
V.  Vaughn 
V.  Wallace 
Portman  v.  Mill 
Portmore  v.  Taylor 
Postlethwait  v.  Frease 
Potter  V.  Potter 
Powell  V.  Dillon 

V.  Edmunds 
V.  Powell 
V.  Rust 
Powers  V.  Bridges 
Pratt  V.  Carroll 

V.  Law 

V.  Philbrook 
Preble  v.  Baldwin 
Prentice  v.  Achorn 
Prentiss  v.  Russ 
Preston  v.'  Merceau 

V.  Tubbin 
Prevost  V.  Gi-atz 
Price  V.  Assheton 

V.  Ayers 

V.  Berrington 

V.  Case 

V.  Dyer 

r.  Griffith 

V.  North 

V.  Price 

V.  Williams 
Prince  v.  Case 
Pringle  v.  Samuel 
V.  Witten 
Pritchard  v.  Ovey 
Proctor  I'.  Jones 
Prothro  v.  Smith 
Providence  v.  Thurber 
Pryse  v.  Cambrian 
Pugh  V.  Good 
Pulsifer  o.  Shepard 
Purcell  V.  McCleary 
Purvis  V.  Raver 
Putnam  v.  Westcott 
Putney  v.  Day 
Pyke  V.  Williams 
Pyles  V.  Reeve 
Pyrke  u.  Waddingham 


274, 


48,  258,  279, 


Page 

118 

151 

55,  214,  268 

41 

472 

283,  291,  455 

53,  158 

589 

41 

144 

IK) 

550 

30 

577 

181 

3 

269 

315 

191 

37,  197,  286 

380 

153 

7 

409,  415 

91,  97 

218 

126 

29 

186 

314,  424 

343,  347 

105,  520 

369 

360 

171,  301 

414 

399 

226 

496 

428 

■      131 

176,  226 

166 

09,  311 

584 

294 

124,  130 

351,  352 

528 

193 

98 

209 

128 

5  0 

144,  145,  158 

189 

166,  263 

214 

319 

100,  129 

150 

■    219 

210 


Q. 

Quackonbush  );.  Leonard 
Quesnell  v.  Woodlief 


R. 


Paob 

397 
329,  333 


Radcliffe  v.  Warrington 

95,  186, 

190 

Radford  v.  Wilson 

420 

Radnor  v.  Shatto 

1 

Ragan  v.  Gaither 

220 

245 

Ramsay  v.  Brailsford       27, 

35,  256, 

434, 
454 

Ramsbottom  v.  Gosdon 

562 

V.  Tunbridge 

116 

Ramsey  v.  Lis  ton 

463 

Randall  v.  Everest 

533 

Raness  v.  Wall 

388 

Rankin  v.  Matthews 

92 

V.  Maxwell 

312 

V.  Simpson 

461 

Ransom  v.  Shuler 

423 

Raphael  v.  Thames 

269 

449 

Rathbone  v.  M'Connell 

125 

Rawlins  v.  Timberlake 

501 

Rawson  v.  Johnson 

573 

Raynor  v.  Robinson 

1 

Read  v.  Walker 

30,  427 

429 

Redding  v.  Wilkes 

144 

Reed  v.  Chambers 

201 

V.  Jones 

448 

V.  Lukens 

7 

V.  Noe 

454 

V.  Redman 

181 

V.  Vidal 

53 

Reed's  Heirs  v.  Hornback 

310 

Rees  V.  Chicago 

46? 

Reeves  v.  Ayers 

410 

V.  Forman 

190 

Regan  v.  Walker 

430 

Reily  v.  Jones 

531 

Reinicker  v.  Smith 

369 

Remington  v.  Deverall 

691 

V.  Irwin 

204 

Rendshaw  v.  Gans 

361 

Retallick  v.  Hawkes 

575 

Rex  V.  Christie 

92 

V.  Dunston 

119 

V.  Horndon 

121 

V.  Marsh 

80 

V.  Snow 

462 

.V.  Standon 

122 

V.  Taylor 

73 

Reyner  v.  Julian 

665 

Reynolds 

405 

V.  Dechanms 

79 

V.  Dunkirk 

107 

118 

V.  Nelson 

203 

350 

7'.  Vance 

312 

V.  Waring 

148 

462 

Rhodes  v.  Bate 

367 

V.  Rliodes 

152 

XXXIV 


INDEX  TO   CASES   CITED. 


Eice  V.  Carter 

108 

Eucker  v.  Lowther 

215 

llich  V.  Jackson 

171 

301 

Eudolph  V.  Conell 

439 

444 

V.  Jolnison 

520 

Eue  iJ.  Eue 

61 

Eichards  v.  Edick 

21,25 

166 

Eutfey  V.  Henderson 

127 

V.  Kichards 

99 

Eugge  V.  Ellis 

444 

Eichardson  v.  Gosser 

21 

Euggles  V.  Lesure 

134 

Eiohmond  v.  Gray 

456 

V.  Nantucket 

7 

V.  Eobinson 

55,  191, 

195 

Euhling  V.  Hackett 

339 

Eicker  v.  Kelly 

186 

Eunkle  v.  Johnson 

243 

250 

Eiddle  i".  Brown 

103 

Eupert  V.  Mark 

408 

411 

Eigby  V.  Maciiamara 

587 

Eussell  V.  Kixon 

111 

Eight  V.  Beard 

513 

V.  Eichards 

137 

Einggold  V.  Bryan 

408 

Eussell's  Appeal 

7 

V.  Einggold 

388 

400 

Eutherford  v.  Haven 

457 

Eingo  V.  Binns 

387 

V.  EufF 

367 

Eippingall  v.  Loyd 

197, 

203 

Eulledge  v.  Lawrence 

524 

Eoacli  V.  Eutliertbrd 

256, 

429 

V.  Smith 

39 

Eoake  v.  Kidd 

222 

Eyan  v.  Hall 

172 

Eob  V.  Butterwick 

10 

Eyle  V.  Brown 

380 

Eobbins  i'.  Bates 

402 

Eoberts  v.  Berry 

205 

V.  Marchant 

567 

S. 

V.  Eowlands 

575 

V.  Tmistall 

383 

Sage  V.  M'Guire 

60 

V.  Wyatt 

291, 

319 

V.  Sherman 

S3 

Eobertson  v.  Great  Western 

568 

V.  Wilcox 

99 

Eobinett  v.  Preston 

569 

Sain  V.  Dulin 

438 

Eobinson  v.  Cromelein 

167 

Sainsbury  v.  Jones 

666 

V.  Green 

76 

V.  Matthews 

106 

V.  Heard 

519 

Salisbury  v.  Hatcher 

55 

V.  Kettletas 

439 

Salmon  v.  Cutts 

392 

V.  Milner 

287 

Sampson  v.  Burnside 

121 

V.  Musgrove 

311 

Sanders  v.  Clark 

189 

V.  Page 

176 

Sanderson  v.  Walker 

405 

Eobson  V.  Collins 

305 

Sanford  v.  Emory 

189 

Eoche  V.  O'Brien 

383 

Sansom  v.  Eliodes 

207 

Eockafellow  r.  Baker 

307 

Sargeant's  v.  State  Bank 

51 

Eodnian  v.  Zilley           342, 

3G7,  370 

374 

Sargent  v.  Adams 

179,  232 

502 

Eodwell  V.  Phillips 

101 

105 

Sartain  v.  Hamilton 

6 

Eoffey  V.  Shallcross 

277 

Saunders  v.  Annesley 

346 

Eogers  v.  Atkinson 

326 

V.  Wakefield 

99 

V.  Colt 

27 

Savage  v.  Carroll 

148,-153 

165 

V.  Mitchell 

343 

444 

Savery  v.  Sypher 

588 

V.  Eogers 

400 

Savile  v.  Savile 

95 

V.  Saunders 

183 

Savory  v.  Underwood 

194 

V.  Wiggs 

511 

Sawyer  v.  Hovey 

341 

V.  Wiley 

408 

Schedda  v.  Sawyer 

387 

V.  Woodbnry 

137 

Schmidt  v.  Livingston 

446 

Eollins  V.  Thornbury 

477 

Schreiber  v.  Creed 

170 

Eome  V.  Young 

588 

Schroeppel  v.  Hopper 

197 

316 

Eoot  V.  Yeomans 

400 

Scoones  v.  Morrell 

558 

Boots  V.  Dormer 

76 

Scorell  V.  Boxall 

102 

Eoper  V.  Coombes 

312 

Scott  V.  Eields 

185 

186 

Eose  V.  Bates 

81 

V.  Hanson 

362 

V.  Calland 

441 

555 

V.  Newsora 

141 

V.  Cunynghame 

7,  115 

141 

V.  Nixon 

237 

290 

Eosevelt  v.  Pulton 

326,  341 

352 

V.  Thorp 

287 

556 

Eoss  V.  Boards 

593 

Seabury  v.  Stewart 

507 

V.  Estates 

353 

Seager  v.  Burns 

442 

V.  Eoss 

54 

Seagood  v.  Meale 

151 

Eoutledge  v.  Grant 

300 

Seaman  v.  Van  Eensselaer 

211 

Eowton  V.  Eowton 

98 

118 

V.  Vawdrey 

276 

Eoy  V.  Willink 

277 

Searcy  v.  Eeardon 

49 

Eoyster  v.  Shackleford 

427 

Sears  v.  Brink 

98 

INDEX    TO    CASES   CITED. 


XXXV 


Seaton  v.  Booth 
Sedgwick  v.  Ilargrave 

V.  Stanton 
Seeley  v.  Howard 
Seers  v.  Fowler 
Seidensparffer  v.  Spear 
Selden  r.  Delaware 

V.  James 
Sellick  V.  Trevor 
Selin  V.  Slade 
Selsey  v.  Rhoades 
Senter  v.  Drake 
Sergeant  v.  IngersoU 
Seton  V.  Slade 
Sewali  V.  Jones 
Seward  v.  Willock 
Sevmour  r.  Delancy     198, 
372,  373,  374,  422,  439, 
i\  Nosworth 
Shackleford  v.  Handley 
Shafer  ?\  Niver 
Sliankland 

Shannon  v.  Bradstreet 
Shapland  r.  Smith 
Sharon  v.  Fickling 
Sharp  V.  Adcock 
Shattuck  V.  Cassidy 
Sliaw  V.  Hay  ward 

V.  Livermore 

V.  Thackray 

V.  Wilkins 
Shay  V.  Pettes 
Sheets  v.  Andrews 
Sheffield  i\  Mulgrave 
Sheldon  v.  Cox 
Shelton  v.  Homer 
V.  Living 
Shepherd  v.  Burkhalter 
Sheppard  v.  Doolan 
V.  Keatley 
Sherwin  r.  Shakspeare 
Sherwood  v.  Robins 
V.  Salmon 
Shiels  V.  Stark 
Shine  i'.  Gough 
Shippey  v.  Derrison 
Shirley  v.  Davies 

V.  Shirley  25, 

V.  Spencer 
r.  Strattoa 
Shore  r.  CoUett 
Shoup  V.  Cook 
Rhrcck  v.  Pierce 
Shuffleton  r.  Jenkins 
Shute  i:  Taylor 
Siilebotham  r.  Barrington 
Simmons  v.  Cornelius 

V.  Hill 
Sirams  v.  Killian 
Simon  i\  Motives 
Simonton  v.  Gandolfo 
Simpson  r.  Gutteridge 
Sims  r.  Hutcluns 

V.  Lewis 


Page 

Pace 

670 

Siter's 

Api>oai 

7 

58 

Sites  I 

.  Keller 

151 

449 

Slack 

V.  Mc  Lagan 

499 

457 

Slater 

V.  Maxwell 

681 

2154 

Slatlci 

r.  Meek 

138 

124 

Slingl 

jir  r.  Eekel 

84 

120, 

121,  124 

Sloo  V 

Law 

199 

120 

Sloper 

I'.  Fish 

212 

218,  548 

2150,  28'J 

Slosson  i\  Beadle 

22 

291 

Small 

V.  Attwood             46 

320, 

430,  569 

404 

Smart 

?'.  Harding 

104 

214,231- 

Smith 

V.  Arnold 

88, 

111,  115 

408 

r.  Babcock 

343. 

345,  354 

182, 

196,  205 

?'.  Baker 

410 

77 

V.  Birmingham 

125 

472 

V.  Boston 

454 

239, 

260,  368, 

V.  Brailsford 

119 

444, 

450,  451 

V.  Burnam 

182 

576 

V.  Burnham 

194 

343, 

359,  441 

V.  Carney 

422 

197 

V.  Chaney 

25 

469 

V.  Clarke 

77,  79 

54,  63,  144 

V.  Death 

212,  218 

547 

V.  Dolman 

194 

214 

V.  Eldridge 

611 

222 

V.  Finch 

463 

435 

V.  Gas  Co. 

125 

206 

V.  Greeley 

339 

27 

V.  Greenlee 

Si,  82 

369 

V.  Henry 

488 

524 

r.  Hibbard 

m 

341 

V.  Jackson 

286 

521 

V.  Lavin 

438 

223 

i\  Lawrence 

444,  447 

407,  413 

V.  Lloyd 

460 

396 

1-.  Low 

408 

90 

?•.  M'Cluskey 

242,  481 

412 

i\  M'Veigli 

440,  463 

219 

r.  Patton 

26,  4M 

227 

r.  Phillips 

416 

40 

289,  557 

V.  Richards 

345 

311 

?•.  Robertson 

219 

327,  342 

346,  358 

V.  Simons 

120 

177 

V.  Smith       34,  125, 

146, 

151,  S36, 

49 

469 

113,  303 

V.  Stewart 

611,515 

362 

V.  Surman 

loe 

,  111 

430,  505 

r.  Tombs 

302 

141 

V.  Underdunck 

142 

143,  145 

364,  446 

V.  Wooding 

507,  515 

288,  593 

r.  Wyley 

97 

309,  428 

Smoot  1'.  Rea 

408 

469,  476 

456 

Smiill 

r.  Jones 

82,84 

185,  186 

Snow 

len  V.  Wilas 

129,  131 

585 

Society  v.  Butler 

444 

560 

V.  Young 

66 

151 

Sohier  v.  Williams 

210 

144,  14() 

Soles 

('.  Hickman 

462 

107 

Sollee 

r.  Croft 

403 

86,87 

Somerville  v.  Triieman 

112 

140,  191 

109 

Sorrel 

r.  Carpenter 

417 

236 

Soule 

r.  Heerman 

4313 

483 

Soute 

r  r.  Drake 

227 

426 

Southby  V.  Ilutt 

241 

289,  2'Jl 

XXXVl 


INDEX   TO    CASES   CITED. 


South-eastern,  &c.  v.  Knott 
Southerim  v.  Mendum 
Sowards  v.  Pritcliett 
Spalding  v.  Couzelman 
Sparks  r.  Hess 
Sjieaknian  v.  rorepaugli 
Spear  v.  Hancock 
Sperling  v.  Trevor 
Spiller  V.  Westlake 
Spindler  v.  Atkinson 
Spoflbrd  V.  Hobbs 
Spratt  V.  Jeffery 
Spurrier  v.  Elderton 
r.  Hancock 
v.  Mayoss 
Squire  v.  Tod 
Staats  V.  Ten  Eyck 
Staines  v.  Morris 

V.  Shore 
Standifer  r.  Davis 
Standley  i\  Hemmington 
Stanley  v.  Robinson 
Stansfield  v.  Johnson 
Stanton  v.  Tattersall 
Stapilton  r.  Stapilton 
Stapylton  r.  Scott 
Starin  v.  New  comb 
Starnes  v.  Allison 
State  V.  Gaillard 

V.  M'Cauley 
State  of  Illinois  v.  Delafield 
Stead  r.  Nelson 
Stearns  v.  Hall 
Stebbins  v.  Eddy 
Stedwell  r.  Anderson 
Steed  I'.  Whitaker 
SteJnhaur  v.  Witman 
Step  V.  Alkire 
Stephens  v.  Benson 
V.  ]\Iedina 
r.  Winn 
Stephenson  v.  Harrison 
Stevens  r.  Adamson 

V.  Guppy 

V.  Hunt 

V.  Eyerson 

V.  Stevens 

V.  Wheeler 
Stevenson  r.  Buxton 

r.  jMaxwell 
Stewart  r.  AUiston 

2-.  iJoughty 

V.  Garviia 

?'.  Lang 

V.  Stewart 

V.  Stokes 
Stiles  V.  Sherman 
Stillman  v.  Young 
StillweU  V.  Wilkins 
Stingle  V.  Hawkins 
St.  John  V.  Benc'lict 

V.  Bishop 
St.  Mary's  i:  Stockton 
Stockett  V.  Taylor 


Page 

442 

66 

584,  588 

153,  463 

163 

217,  221,  407 

20U 

224 

493 

358,  398,  400 

67,68 

228,  231 

92,  96,  561 

183,  186,  188,  401 

47 


485,  575 

521 

554 

78,80 

474 

478 

346 

87 

338 

443 

212,  326 

99,  151 

456 

345 

143 

32 

58 

174 

332,  337 

48,  326,  338,  340 

414 

500 

314 

121,  129 

471 

99 

524 

301 

291,  463 

268 

189 

124,  134,  135 

463 

439 

35,  36,  39,  44 

279,  310 

100 

114 

4 

324 

448 

491 

6 

370,  372 

486 

446 

8 

454 

408 


Stokes  V.  Moore 
Stone  V.  Pratt 

V.  Stevens 

V.  The  State 
Story  I'.  Windsor 
Stout  r.  Jackson 
Stoutenburgh  v.  Tompkins 
Stow  ('.  Robinson 

?'.  Russell 
Stowell  i\  Robinson 
St.  Paul  r.  Brown 
Strafltbrd  i\  Bosworth 
Stranks  v.  St.  John 
Streeter  v.  Henley 
Stuart  V.  The  L.  N.  W.  R.R.  Co 


b6, 


183, 
270, 


Stubblefield  i\  Beasely 
Sturdevant  r.  Pike 
Stutenberg  v.  Tompkins 
Sugg  V.  Stowe 
Sullivant  r.  Franklin 
Sutphen  v.  Fowler 
Suydam  v.  Jones 
Swan  V.  Cox 

V.  Drury 
Swartwout  v.  Burr 
Sweeney  v.  Miller 

V.  Sampson 
Sweetland  v.  Smith 
Sweetzer  v.  Hummell 
Swihart  v.  Cline 
Switzer  r.  Skiles 
Sykes  v.  Giles 
Symonds  v.  Ball 
Symondsou  v.  Tweed 


Taft  V.  Kessel 
Tallmade  r.  Wallis 
Tanner  v.  Elworthy 

V.  Smith 
Tarwater  v.  Davis 
Tasker  v.  Small 
Tate  V.  Williamson 
Tajdor  i\  Barker 
i\  Brown 
V.  Fleet 
?'.  Green 
V.  Longworth 
V.  Martindale] 
V.  Patrick 
V.  Perry 
V.  Ross 
V.  Salmon 
r.  Stibbert 
V.  Waters 
Teall  i\  Auty 
Tebbott  V.  Voules 
Tempest  v.  Fitzgerald 
Temple  v.  Brown 
Tenny  v.  Childs 
Terrell  v.  Kirksey 


Pagb 

116 

444,  451 

268 

85 

407,  577 

520 

442 

468 

189,  197 

202 

433,  458 

13,  162 

297 

499 

290, 

425 

83 

387 

442 

438,  469 

128 

552 

500 

490 

245,  249 

63 

105 

490 

38 

474 

458 

81,  474 

85 

88 

148 


269,  309 

499 

397 

315 

484 

564,  568 

371,  372 

409 

203,  283,  551 

362 

56 

484 

228,  310 

367 

488 

99 

387 

301,  415,  416 

120 

106 

10 

98 

230,  297 

294 

272 


INDEX   TO    CASES   CITED. 


XXXVll 


Paqe 

Terry  r.  Duntze  264 

Tevis  i:  Richardson  422 

Tewksbury  r.  Latilin  2(3'J 

Tharin  v.  Fickling  243,  244 

Thayer  r.  l^)ck  103 

V.  Turner  673 

V.  Viles  108 

Thellusson  r.  Wooflford  9 

The  Matteawan  v.  Beutley  350 

Thomas  v.  Brown  438 

V.  Dering  278,  281 

V.  Powell  590 

V.  Sorell  132 

Thompson  v.  Allen  469 

V.  Davis  84 

r.  Dulles  188,  215 

r.  Gould  156 

V.  Guthrie  522 

V.  Hallett  402 

V.  Norton  205 

V.  Richards  209 

V.  Scott  145 

V.  Tod  118,  142 

Thomson  v.  Miles  319 

Thorn  v.  Thorn  99 

Thornton  v.  Henry  141 

V.  Kempster  111 

?».  Wynian  573 

Thorp  V.  M'Cullum  400 

Thrasher  r.  Pinkard  268 

Threlkeld  r.  Fitzhugh  520 

Thresh  v.  Rake  202 

Thurston  v.  Frankhu  College  29 

Thwaites  405 

Tibbs  V.  Barker  GO,  141 

r.  Morris  317 

Tiernan  v.  Roland  29,  31,  32,  60,  181,  193 

Tilley  v.  Thomas  448 


Tillotson  V.  Grapes 
Tillman  r.  Fuller 
Tilton  V.  Tilton 
Tindal  v.  Cobham 
Tindall  v.  Conover 
Tinney  v.  Asliley 
Tison  V.  Smith 
Todd  V.  Caldwell 

V.  Gee 

V.  Hoggart 

V.  Simmons 
Tohler  v.  Folsom 
Tomkins  i\  White 
Tomlin  v.  M' Chord 
Tomlinson  v.  Savage 
Tompkins  v.  Hyatt 
Toppin  V.  Lomas 
Torr  r.  Torr 
Torrey  v.  Buck 
Toulmin  v.  Steere 
Tourville  r.  Naish 
Towle  V.  Leavitt 
Town  }•.  Need  ham 
Towne  v.  D'Heinrick 
Towiiend  r.  Toker 
Townsund  v.  Champernowne 


489 

293 

11,  141 

400 

269 

266,  477,  485,  573 

490 

501 

45,  273,  275 

485 

243 

■99 

300 

209,  454 

79,  80,  274 

316 

107 

469 

444 

413 

407 

77 

147 

511 

566 

549 


Townsend  r.  Corning 

r.  Lewis 
Townshend  v.  Champernowne 
V.  Stangroom 
r.  Townshend 
Trammell  r.  Tramiiiell 
Traphagen  v.  Traphagen 
Trask  ?-.  Vinson 
Traver  ?'.  Halstead 
Travers  v.  Crane 
Ti-efusis  V.  Clinton 
Tremaine  v.  Lining 
Trent  r.  Hanning 
Trevanian  i\  Mosse 
Trevelyan  v.  White 
Trimble  v.  Boothby 
Tripp  r.  Cook 
Troughton  ?-.  Troughton 
Troup  ?>.  Wood 
Trower  v.  Newcome 
Trull  V.  Eastman 
Trustees  v.  Robinson 
Tucker  r.  Clarke 

V.  Woods 
Tufts  V.  Tufts 
Tunno  r.  Flood 
Tunstall  v.  Trappes 
Turner  v.  Harvey 

r.  Marriott 
Tuthill  V.  Babcock 

V.  Rogers 
Twining  i\  Morrice 
Twistleton  v.  Griffith 
Twogood  i'.  Stephens 
Tyler  v.  Beversham 

1-.  Young 
Tyree  v.  Williams 


u. 


172, 


Page 

69 

448 

196 
173 

41 
124 
140 
494 
268 
468 

42 
215 
212 
576 
419 
420 
421 
243 
389 
310 
382 

21 
422 
281 
404 
5^0 
417 
372 
437 
349 
237 

77 
393 
318 
311 
490 
75,  235,  277 


402, 


81, 


13,  24, 
110,  118, 

413, 
326,  364, 


20, 


Underbill  v.  Horwood  372 

Usher  (•.  Livermore  447 


Valentine  v.  Central  165 

Van  i\  Corpe  172 

Vanada's  i'.  Hopkins  215 

Vancouver  i:  Bliss         286,  504,  547,  552 
Vandenburgh  v.  Van  Bergen  129 

Vanderhewill  v.  Storrs  515 

Van  Eps  v.  Schenectady        30,  266,  268, 

271 
Vanhorn  r.  Frick  66 

Van  Schaick  /•.  Winne  ■  574 

Van  Waggoner  v.  M'Ewen  500 

Van  Zandt  v.  New  York  189 

Vaughn  r.  Cusliing  53 

Vawser  v.  Jeftery  10 

Veazie  v.  Williams  78,  79,  80,  85 

Veeder  v.  Fonda  329 

Verlander  v.  Codd  113 


XXXVIU 


INDEX   TO    CASES   CITED. 


Vennum  v.  Babcock 

458 

Watkins  v.  Stockett 

Vernon  v.  Stepliens 

200 

Watrous  v.  Chalker 

V.  Vernon 

7 

Watson  V.  Inman 

Vickers  v.  Vickers 

453 

V.  Mahan 

Vicksburgh  v.  Hamilton 

13 

V.  Marston 

Viele  V.  Tbe  Troy,  (&c. 

198, 

450 

V.  Reid 

Vielee  v.  Osgood 

104 

Watts  V.  Kenney 

Vigers  v.  Pike 

347, 

349 

V.  Sheppard 

Violet  V.  Patton 

99 

V.  Waddle 

Vol!  V.  Smith 

151 

Wear  v.  Parish 

Voorhees  v.  De  Meyer  I'Ji, 

195,  272 

277 

Webb  V.  Austen 

Vowles  I'.  Craig 

336 

V.  Bettel 
V.  Sugar 

w. 

Wagner  v.  Cohen  581 

Wain  V.  Warlters  98 

Wainscott  v.  Silvers  3 

Wainwright  v.  Read  91,  333 

Wakeman  v.  Rutland  668 

Walker  v.  Advocate-General  76 

V.  Barnes  591 

V.  Brungard  400 

V.  Constable    87,  93,  96,  267,  529 

V.  Emerson  448 

V.  Johnson  427 

V.  Moore  528 

V.  Smalwood  417 

Wall  V.  Bright  10 

V.  Northumberland  665 

V.  Stubbs  •      342 

Waller  v.  Hendon  304 

Walling  V.  Kinnard  30,  353,  528 

Wallinger  v.  Hilbert  284 

Wallis  r.  Harrison  130 

V.  Sarel  42 

Wallwynn  r.  Lee  412,  420 

Walter  v.  Maunde  231,  301 

Walters  v.  Miller  317 

V.  Morgan  303 

V.  Pyman  286 

Walworth  v.  Anderson  656 

Ward  V.  Arredondo  435 

V.  Garnions  290 

V.  Moore  9 

V.  Packard  364 

Warder  r.  Jeffery  206 

Waring  v.  Hoggart  299 

Warneford  v.  Thompson  224 

Warner  v.  Bacon  528 

V.  Daniels  426 

r.  Hattield  488 

Warren  v.  Richardson  232 

Warrick  v.  Warrick  414 

Warwick  v.  Bruce  105 

Wason  V.  Waring  361 

Wasson  v.  English  404 

Waters  v.  Bailey  397 

r.  Groom  405 

;•.  Mattingly  343,  361 

r.  Travis  191,  456,  465 

Watkins  v.  Gilkerson  107 

V.  Rogers  269 


Pags 

359 

66 

447 

452,  468 

327 

203 

60 

175 

48,  208,  234,  237,  454 

341 

252 

471 

397 

V.  The  Direct  London  433 

V.  The  L.  &  P.  RaUway  Co.      424 
Weber  v.  Marshall  457,  463 

Webster  v.  Doran  536 

V.  Ela  51 

Weddall  v.  Nixon  223 

Wedgewood  v.  Adams  328 


Weeds  v.  Bristow 
Weelhers 
Weems  v.  Brewer 
Weisman  v.  Smith 
Welibrd  v.  Beazely 
Weller  v.  Weyand 
Wells  V.  Bannister 
V.  Smith 
V.  Wells 
Weutworth  v.  Goodwin 

V.  Wentworth 
Wesley  v.  Thomas 
West  V.  Emmons 
Westall  V.  Austin 
AVesterman  v.  Means 
Western  v.  Perrin 
i\  Russell 
Westervelt  v.  Matheson 
Wetmore  v.  White 
Whaley  v.  Bagenal 

?'.  Eliot 
Wheatley  v.  Slade 
Wheaton  v.  Wheaton 
Wheeler  v.  Collier 
V.  Rowell 
V.  Smith 
V.  Wright 
Whelpdale  v.  Cookson 
Whiclicote  v.  Lawrence 
Whipple  V.  Foot 
Whitbread  v.  Brockhurst 
V.  Jordan 
.  Whitchurch  v.  Bevis 
Whitcomb  v.  Foley 
White 

V.  Bartlett 
V.  Butcher 
V.  Caddon 
V.  Damon 
i\  Flora 
V.  Foijambe 
V.  Hooper 
V.  Palmer 
V.  Proctor 


226 

400 

314 

467 

111 

467 

137 

31,  185,  246 

180,  191.  501 

■  498 

153,  155 

359 

475,  572 

253 

183,  187 

554 

113,  281,372 

.     314 

141,  147 

144 

332 

277 

325,  341 

77,88 

120 

379 

228 

400 

388,  404 

104 

140 

408 

144 

284 

137,  451 

83 

191,  432 

274 

374 

372 

227,  281,  555 

468 

367 

87 


INDEX   TO   CASES   CITED. 


XXXIX 


White  V.  Tompkins 

V.  AVi  Ilia  111  s 
"Wliiteliurst  r.  15oyd 
Whiteside  v.  Jennings  19,  G4, 

Whitman  ?■.  Weston 
Whitmarsh  ;•.  Walker  105, 

Whitmel  r.  Fanel 
Whitney  v.  New  Haven 
Whittemore  r.  Gibbs 
Whorwood  ;•.  Simpson 
Wible  V.  Wible 
Wigg  V.  Wigg 

Wiggins  V.  IjOtA  94, 

V.  McGimpsey  489, 

Wigglesworth  v.  Steers 
Wilber  r.  Pain 
Wilbur  r.  How 
Wilcox  r.  Bcllners  286, 

V.  Marshall 
Wildbahn  v.  Robidoux 
Wilde  V.  Foot  93, 

V.  Torte  240, 

Wildgoose  v.  Wevland  414, 

Wiley  V.  Kobert  '  99, 

Wilkinson  v.  lowkes 

r.  Scott 
Wilks  v.  Davis  22, 

Willan  V.  Willan 
William  v.  NeviU 

Williams  v.  Edwards  185,  261, 

V.  First  Presbyterian 
V.  Glenton  87, 

V.  Llewellyn 

V.  Eogers  35,  36,  45, 

■  V.  Sliaw 
V.  Williams 
V.  Woodruff 
Williamson  r.  Seaber 
Willis  V.  Jernegan 

WiUiston  i:  Williston  20,  141, 

Wills  V.  Stradling  158, 

Wilmot  t'.  Wilkinson 
Wilsey  r.  Dennis  218,  238, 

Wilson  V.  Allen 

V.  Clapham 

V.  Fidler 

V.  Getty 

V.  Kearse 

V.  "W^ilson 
Wilton  V.  Harwood 
Winch  r.  Winchester  91,  172, 

Winckham  r.  Hawker 
Winne  v.  Reynolds        215,  270,  271, 
Winter  i:  Brock  well 

V.  Proderick 

I'.  Jones 
Winterbottom  v.  Ingham 


Winton  v.  Sherman 

V.  Spring 
Wiswall  V.  McGown 
Witherspoon  )•.  Anderson 
Withy  V.  Cottle 
Witter  V.  liiscoe 


288,  284, 

202^ 
184, 


Page 
23 
341 
174 

524 
340 
132 

59 
425 
106 
446 
153 
407 
401 
49G 
369 
141 

83 
555 
294 
171 
208 
251 
415 
114 
386 
139 
458 
323 
151 
552 
401 
548 
403 
321 
464 
179 
583 
405 
373 
197 
305 
213 
267 
550 
554 
363 
641 

63 
229 
156 
271 
129 
550 
137 
131 

31 
512, 
515 
472 
318 
423 

50 
284 
209 


Witters  r.  Baird 
Wolf  V.  Willitts 
Woll'e  r.  Ilauver 
Wood  V.  Beriial 

V.  Goodridgo 
V.  Hewett 
V.  Lake 
I'.  Lanibirth 
V.  Lcadbitter 
V.  Manley 
V.  Mann 
r.  Midgeley 
V.  Perry 
V.  White 
Woodark  v.  Bennet 
Woodbury  v.  Parsliley 
Woodcock  V.  Bennet 
Woodman  i'.  Freeman 
Woodrofle  v.  Titterton 
Woods  V.  Hall 
V.  Kirk 
Wood's  Executor  r.  Hudson 
Woodward  r.  Clark 
V.  Picket 
V.  Seeley 
Woollam  V.  Hearn 
Worrall  v.  Munn 
Worseley  v.  De  Mattos 
Worsley  v.  Scarborough 
Worthy  v.  Johnson 
Wright  V.  Begg 
i\  Bond 
J'.  Dannah 
V.  Howard 
V.  Le.  Claire 
V.  Schneider 
V.  Stavert 
V.  Tinsley 
V.  Wilson 
V.  Young 
Wynn  v.  Morgan 
Wj'nne  v.  Griffith 
Wyville  v.  Bishop  of  Exeter 


131,  132, 
125, 


425,  426, 
428, 


97, 
414, 


181, 
448,  458, 


456, 
95,  563, 


Page 
215 
197 

22 
200 

70 
137 
121 
287 
184 
136 
586 
152 
564 
564 
249 
136 
442 
528 
284 
343 
208 

81 
410 

99 
120 
172 
111 
407 
417 
395 

15 
283 
387 
280 
469 
143 
103 
488 
275 
458 
254 
589 
553 


Yates  V.  Martin 
Yeates  r.  Prior 
Yeoman  r.  Ellison 
York  V.  Mackenzie 
Yost  r.  Devault 
Young  V.  Clerk 
r.  Daniels 
V.  Lillard 
V.  McClung 
Younge  v.  Duncombe 
Younger  i\  Welch 
Yourt  V.  Hopkins 


107 

843,  347,  348 

294 

405 

437 

444 

444,  447,  448,  458 

243 

655 

460 

463,  476,  505 

85 


Zickafosse  v.  Hulick 
Zimmerman  ??.  Wcngert 


106 
155 


THE    LAW 


YENDOP.S    AND    PURCHASEllS. 


CHAPTER   I. 


NATURE  OF  THE  CONTRACT  FOR  A  SALE  AND  PURCHASE  OF  LANDS. 


1.  Distinction  between  the  executory  con- 
tract, and  a  transfer  in  pursuance  of  it ; 
merger,  &c. ;  right  of  property  and  possession, 
at  law. 

3.  Doctrine  in  equity ;  ■whether  a  title 
passes. 


4.  Whether  the  purchaser  has  a  descendible 
and  devisable  interest;  application  of  funds; 
revocation  and  republication  of  will,  iS:c.  De- 
vise by  a  vendor,  and  the  effect  thereof. 

12.  Reforming  a  deed,  for  variance  from 
the  previous  contract. 


1.  The  law  uniformly  recognizes  the  obvious  distinction  between 
the  contract  of  pwxhase  and  sale,(a?)  which  is  a  mere  executory 


(a)  An  agreement,  on  good  considera- 
tion, to  devise  real  estate  has  been  lield 
valid.  Mundorff  v.  Howard,  4  Md.  459  ; 
Wright  V.  Tinsley,  30  Mis.  389.  See  Rad- 
nor V.  Shafto,  11  Ves.  447.  A.,  being  in 
treaty  for  the  purchase  of  land  offered 
for  sale  by  B.,  was  informed  by  C.  that 
he  had  a  claim  to  it.  C.  also  inserted  in 
a  newspaper  an  advertisement,  cautioning 
all  persons  against  purchasing ;  and  caused 
to  be  recorded  a  bond  of  B.,  binding  him- 
self not  to  revoke  a  will,  in  which  he  had 
devised  the  land  to  the  wife  of  C,  which 
bond  was  also  shown  to  A.  before  he  had 
concluded  the  purchase.  Held,  these  cir- 
cumstances were  sufficient  to  constitute 
A.  a  purchaser  with  notice,  notwithstand- 
ing, having  seen  the  will,  he  had  discov- 
ered a  misrecital  of  it  in  the  bond,  and 
was  advised  that  he  might  safely  purchase. 
Argenbright  v.  Campbell,  3  lien.  &  M. 
144. 

The  parol  contract  of  a  decedent,  to 
give  a  certain  portion  of  his  estate,  in 


consideration  of  services  rendered,  even 
if  capable  of  being  enforced,  can  only  be, 
when  clearly  proved  by  direct  and  posi- 
tive evidence,  and  when  its  terms  are 
definite  and  certain.  Graham  v.  Graham, 
34  Penn.  475.  A  promise  to  give  the 
plaintiff,  in  consideration  of  services,  "as 
much  as  to  any  relation  on  earth,"  is  too 
indefinite  to  be  enforced.  Remarks  by  an 
intestate,  to  the  effect  that  one  of  his  sons 
should  have  his  farm,  that  it  woukl  pay 
him  for  the  trouble  he  had  taken  for  his 
father,  and  other  things  to  the  same 
effect,  prove  a  recognition  by  the  intestate 
of  services  rendered  by  the  son,  for  which 
compensation  was  to  be  given,  and  are 
evidence  of  an  intention  to  devise  the 
farm  to  the  son  ;  but  tliey  do  not  prove  a 
contract  upon  tlie  faith  of  which  the  ser- 
vices were  performed,  and  by  which  the 
intestate  was  bound  to  devise  the  farm  to 
the  son.  llaynor  v.  Robinson,  36  Barb. 
128. 

The  following  late  English  case  estab- 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  I. 


agreement,  giving  to  each  party  a  valid  claim  against  the  other,  but 
neither  transferring  nor  vesting  any  present  title ;  and  an  actual 


lishes  an  important  distinction  as  to  the 
terms  of  conmiunication  which  are  neces- 
sar}'  and  siifRcient  to  create  this  somewhat 
anomalous  and  unusual  liability  :  — 

The  guardians  of  a  lady  refused  their 
assent  to  a  proposed  marriage,  except  on 
condition  of  a  marriage  settlement.  The 
proposed  husband  thereupon  applied  to  an 
uncle,  of  whom  lie  had  expectations,  who 
replied  by  letter,  tliat  lie  luvd  made  his  will, 
and  given  his  nepliew  a  large  estate.  The 
guardians  not  being  satisfied,  they  re- 
newed the  application,  to  which  the  uncle 
replied  by  letter,  that  his  will  was  made, 
and  he  was  confident  he  should  never 
alter  it  to  his  nephew's  disadvantage,  but 
that  he  would  not  put  any  part  of  his 
property  out  of  his  power.  This  answer 
was  communicated  by  the  intended  hus- 
band to  the  guardians,  and  the  marriage 
agreed  to.  The  uncle  afterwards  altered 
his  will,  leaving  nothing  to  the  nephew ; 
and,  after  his  death,  this  suit  was  brought 
against  his  estate.  Held,  the  facts  did 
not  prove  a  contract  to  leave  the  estate 
mentioned  in  the  letters  to  the  nepliew. 
Lord  Chancellor  Cran worth  says  (in  sub- 
stance) :  "  The  appellant  paid  his  addresses 
to  his  cousin  ;  he  had  an  uncle,  an  old 
bachelor,  with  a  large  property  ;  he  him- 
self had  but  little  money ;  the  guardians 
of  the  young  lady  were  opposed  to  the 
marriage,  unless  lie  could  make  a  good 
settlement  in  her  tavor  ;  and  under  these 
circumstances,  having  received  kindnesses 
from  his  uncle,  and  believing  that  his 
uncle  was  willing  to  befriend  him,  he  ad- 
dresses a  letter  to  tlie  uncle,  who  says,  in 
answer,  that  he  is  glad  to  see  that  his 
nephew,  the  appellant,  is  about  to  be  well 
married,  and  that  he  has  left  his  Tipperary 
property  to  the  appellant.  That  was  a 
very  vague  answer ;  and  the  trustees  and 
guardians  wished  for  a  more  specific  dec- 
laration. We  have  not  the  letter  com- 
municating this  wish,  but  we  have  the 
answer,  —  '  I  shall  never  settle  any  part 
of  my  property  out  of  my  power  so  long 
as  I  exist.'  Nothing  can  be  clearer,  or 
more  strongly  expressed,  than  this  reso- 
lution. I  think  the  attempt  afterwards  to 
spell  out  of  this  letter  a  representation 
which  is  to  be  construed  into  an  engage- 
ment or  a  contract  is  altogether  unsatis- 
factory. To  say  that  in  tliis  same  letter 
the  party  binds  liimself  to  make  a  settle- 
ment of  his  property,  when  he  merely 
says  that  the  Tipperary  estates  will  come 
into  his  nephew's  possession  after  his 
death,   '  unless    some    unforeseen    occur- 


rence should  tiike  place,'  does  seem  to 
me  to  be  an  attempt  to  put  a  construction 
on  words  which  their  natural  meaning 
will  by  no  means  warrant.  Tlien  Mr. 
Eyre,  the  uncle,  says,  '  My  will  has  been 
made  for  some  time  ; '  a  fact  which  we 
must  assume  to  be  true,  and  which  is 
itself  an  answer  to  the  application  to  make 
at  that  time  a  settlement  in  the  nephew's 
favor.  Then  the  uncle  goes  on  :  '  I  am 
confident  I  shall  never  alter  it  to  j'our 
disadvantage  ;  and  I  repeat,  that  my  Tip- 
perary estates  will  come  to  you  at  my 
death,  unless  some  unforeseen  occurrence 
should  take  place.'  He  says,  in  substance, 
'  I  am  now  on  good  terms  with  you ;  I 
will  not  bind  myself  to  do  what  the  trus- 
tees ask  ;  I  have  made  my  will,  and  that 
will  remain  as  it  is,  unless  some  unfore- 
seen occurrence  should  happen.'  The 
marriage,  with  the  consent  of  the  guar- 
dians, took  place  ;  they  thinking,  as  tiiey 
say,  that  the  letter  was  equivalent  to  a 
contract.  The  trustees  objected  to  the 
marriage ;  they  discussed  the  youth  of 
the  lady,  and  other  circumstances  ;  and 
the  marriage  did  not  in  fact  take  place  till 
nearly  twelve  months  after  the  letter.  If 
they  relied  on  this  letter  as  a  contract,  I 
think  that  common  honesty  required  that 
they  should  distinctly  have  brought  that 
circumstance  to  the  uncle's  knowledge. 
They  should  have  said  :  '  What  is  it  that 
you  mean  ?  Is  this  intended  as  a  promise 
which  is  to  be  binding  upon  you,  or  is  it 
merely  an  expression  of  kindness  and 
good-will  ? '  They  do  nothing  of  the  sort  ; 
but,  after  some  time,  they  proceed  to  make 
a  settlement.  The  young  man  covenants 
that  he  will  settle  this  property,  if  he  gets 
it ;  and  they  accept  that  covenant.  Of 
course,  all  tliat  he  could  do  was  to  under- 
take to  settle  whatever  he  might  after- 
wards receive  under  this  letter  ;  he  did  so 
covenant,  and  they  took  that  covenant." 

The  Lord  Chancellor  proceeds  to  dis- 
tinguish this  case  from  that  of  Hammersley 
V.  De  Biel,  12  CI.  &  F.  45,  upon  the  ground 
that  there  was  a  contract  to  leave  a  sum  of 
money,  whereas  here  was  nothing  more 
than  a  representation  on  which  the  parties 
were  said  to  have  acted.  He  remarks 
(p.  11):  "Suppose  that  this  gentleman 
had,  on  the  eve  of  the  marriage,  said  to 
the  appellant, '  You  may  safely  enter  into 
this  marriage  ;  for  I  have  executed  a  deed 
by  which  I  engage  to  leave  you  such  and 
such  estates.'  If,  on  the  faith  of  that  rep- 
resentation, the  nephew  had  married,  the 
micle  would  then  have  made  a  represen- 


CHAP.  I.]   NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC. 


conveyance  of  the  property  between  grantor  and  grantee.^(a)    Pay- 
ment of  the  price,  and  a  written  agreement  to  convey,  give  to  the 

^  See  Laii  v.  Mumma,  43  Penn.  2G7. 


tation  on  which  he  knew  tliat  tlie  nephew 
would  act ;  and  it  would  be  a  fraud  on 
the  nephew,  or  on  those  who  dealt  with 
him,  and  came  after  him,  to  set  up  as  an 
answer  that  that  was  a  mere  intention 
which  he  had  entertained  at  the  time. 
The  uncle  would,  in  fact,  have  made  a 
contract,  and  he  would  be  compelled  to 
make  it  good  ;  for  he  would  have  made 
a  representation  with  a  view  to  induce 
others  to  act  upon  it,  and  on  the  faith  of 
it  they  had,  at  the  moment,  acted.  There 
is  no  middle  term,  no  tertium  quid,  between 
a  representation  so  made  to  be  etfective 
for  such  a  purpose  and  being  etfective  for 
it,  and  a  contract :  they  are  identical." 
Mannsell  v.  White,  31  Eng.  L.  &  Eq.  1,  9. 

(a)  Bond  to  convey,  on  payment  of  a 
certain  sum.  The  obligee  built  a  house  on 
the  land,  without  any  agreement  for  its 
removal,  and  paid  part  of  the  price  ;  and, 
to  protect  the  property  from  his  creditors, 
for  an  inadequate  consideration  assigned 
the  bond  to  his  son.  In  the  mean  time, 
some  of  the  creditors  had  attached  tlie 
house,  and  caused  it  to  be  sold  as  personal 
property ;  and,  with  full  notice  of  the 
facts,  took  a  conveyance  of  the  land  from 
the  obligor.  Held,  before  the  assignment 
of  the  bond,  the  obligee  had  no  attachable 
interest  in  the  land  ;  that  tlie  house  was 
real  estate  ;  and  that  the  son,  on  tender 
of  tlie  balance  due,  and  demanding  per- 
formance of  the  bond,  might  maintain  a 
bill  in  equity  against  the  obligor  and  the 
creditors  for  specific  performance.  Mur- 
phy V.  Marland,  8  Cusli.  575. 

An  agreement  stated  the  sale  of  certain 
lands ;  and  the  vendor  covenanted  for 
himself,  Iiis  heirs,  &c.,  to  convey  so  mucli 
of  them,  as  he  held  the  legal  title  of,  to  the 
vendee,  his  heirs,  &c.,  by  a  certain  time, 
with  general  warranty,  and  to  procure  a 
third  person  to  convey  such  parts  as  he 
was  legally  entitled  to,  to  the  vendee,  his 
heirs,  &c.,  by  a  certain  subsequent  time, 
with  special  warranty.  Held,  only  an 
ordinary  bond  for  a  conveyance,  which 
passed  a  mere  equitable  estate.  Lafferty 
V.  Whitesides,  1  Swan  (Tenn.),  123. 

A.  contracted  with  B.,  that,  with  the 
money  of  A.,  B.  should  purchase  and  sell 
lands  in  the  name  of  A.,  and,  as  a  com- 
pensation for  his  services  in  buying  and 
selling  the  lands,  should  have  half  the 
profits  to  be  derived  from  the  operation. 
Held,  B.  had  no  title  to  or  interest  in  the 
land,  but  only  an  interest  in  the  profits. 
Porter  v.  Ewing,  24  111.  617. 


A  vendor  who  parts  with  the  posses- 
sion, but  retains  the  legal  title,  is  not 
obliged  to  i>ursue  tlie  remedy  to  obtain 
the  money  or  the  land,  i)oiiite(l  out  by  the 
(Iowa)  Code,  §§  20',t4-o,  2tir.^i,  which  are 
probably  but  declaratory  of  tlie  common 
law.  lie  can  recover  possession  without 
tendering  back  money  or  notes,  as  the 
mere  recovery  of  possession  does  not  set- 
tle the  parties'  rights  in  other  respects. 
Page  V.  Cole,  6  Clarke,  153. 

An  occupant  of  land,  which  he  has 
agreed  to  purchase,  by  a  written  contract 
which  contains  no  stipulation  that  he  may 
have  possession  until  tiie  price  is  paid,  is 
a  mere  tenant  at  will,  and  cannot  sustain 
an  action  for  an  injm-y  to  the  reversion, 
although  he  subsequently  becomes  the 
owner  in  tee.  Foley  v.  Wyeth,  2  Allen, 
131. 

Where  there  is  a  parol  purchase  of  real 
estate,  and  a  portion  of  the  purchase- 
money  paid,  but  not  such  part  perform- 
ance as  will  take  the  case  out  of  the  Statute 
of  Frauds,  a  loss,  as  by  burning,  will  fall 
upon  the  vendor ;  and  the  purchaser  nuiy 
recover  back  the  purchase-mone}'  ad- 
vanced. Blew  V.  INlcClelland,  2y  Mis. 
304. 

Where  land  and  buildings  are  sold,  the 
vendor  to  possess  and  use  them  till  the 
vendee  sell,  and  then  to  give  them  up  in 
as  good  repair  as  when  purciiased ;  if 
damage  to  an  amount  equal  to  the  pur- 
chase-money due  occurs  to  the  premises 
while  so  held  by  the  vendor,  through  Ins 
negligence  or  misconduct,  tiie  vendee  is 
entitled  to  an  account  with  the  vendor, 
and  to  have  his  title  quieted,  \\\w\\  an  otler 
to  pay  what  may  be  tbund  dne,  without 
alleging  a  tender  of  the  purchase-money. 
Gibson  v.  EUer,  13  Ind.  124. 

And  the  vendor  must  rebuild,  or  the 
vendee  may  deduct  from  the  jiurchase- 
money  the  cost  of  rebuilding.     Ibid. 

But  where,  after  an  executed  j)aro!  sale, 
the  vendor  retains  possession  for  a  given 
time,  so  far  as  regards  his  liability  for  the 
destruction  or  injury  of  the  property,  he 
is  a  tenant,  and  not  liable  for  an  acci- 
dental fire.  Wainscott  v.  Silvers,  13  Ind. 
4'J7. 

An  informal  instrument,  called  by  the 
parties  an  agreement,  expressed  to  be  in 
consideration  of  future  covenants  to  be 
done  and  performed,  and  with  no  present 
sum  in  hand  paid,  containing  no  \vords  of 
inheritance,  and  \vitliout  the  formal  ac- 
knowledgment of  a  deed,  was  held  to  be 


4  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  I. 

vendee  an  equitable  title,  which  may  be  enforced  in  equity  against 
the  vendor  or  a  purchaser  from  him  with  notice  ;  but  at  law  such 
title  cannot  prevail  against  the  legal  title. ^(a)  So  a  vendor  and 
vendee  are  said  not  to  stand  in  the  relation  of  mortgagee  and  mort- 
gagor? (h)  Though  it  has  been  held,  that,  where  lands  are  sold  by 
a  bond  or  covenant,  conditioned  to  make  title  upon  payment  of  the 


1  Brill  V.  Stiles,  35  111.  305. 


2  Kirby  v.  Harrison,  2  Ohio,  n.s.  32G. 


an  executory  contract  only,  and  not  a 
present  conveyance,  though  it  contained 
words  of  present  assurance,  "  doth  and 
hath  by  tliese  presents  granted,  bargained, 
sold,  and  for  ever  quitclaim,"  &c.  Stewart 
V.  Lang,  37  Penn.  20L 

A  mere  declaration  in  writing  by  a 
vendor  of  a  vendee's  purchase  of  land, 
that  the  vendee  had  paid  the  money  for 
it,  and  that  the  vendor  intended  to  make 
deeds  when  prepared  to  do  so,  is  not  a 
document  purporting  to  convey  title  ;  and 
accordingly  will  constitute  neither  a  link 
in  "  a  consecutive  chain  of  transfer,"  nor 
"  color  of  title,"  within  the  meaning  of  the 
fifteenth  section  of  the  Statute  of  Limita- 
tions of  Texas.  Osterman  r.  Baldwin, 
Leg.  LiteL  (Pa.),  U.S.  S.C.  Black. 

Action  upon  the  following  writing, 
signed  by  both  parties :  "  This  certifies 
that  I  have  sold  to  "  the  plaintiif  "  about 
five  acres  of  land,  more  or  less,  being  the 
same  which  I  bought  of  him,  in  considera- 
tion of  the  same  sum  which  I  paid  him 
for  tlie  same,  with  interest  from  the  time 
I  purchased  the  same  till  I  paid  for  it 
(supposed  about  six  months),  with  the 
expense  of  the  deed,  also  the  taxes  for  one 
year."  Held,  an  executory  contract  for 
the  sale  of  the  land.  Atwood  v.  Cobb,  16 
Pick.  23  L 

A  widow  joined  with  all  but  one  of  the 
heirs  of  her  husband  in  a  bond  to  sell  their 
respective  interests  in  her  husband's  real 
estate  at  public  auction,  she  to  receive  for 
her  life  estate  whatever  might  belong  to 
her  in  accordance  with  the  usual  custom 
of  calculating  the  value  of  life  estates. 
On  the  13th  of  May,  a  proposal  to  pur- 
chase was  made  at  an  auction,  by  the  bid 
of  a  certain  sum ;  but  no  written  agree- 
ment was  executed,  nor  was  there  any 
memorandum  made  by  the  auctioneer 
suflicient  to  bind  the  parties  under  the 
Statute  of  Frauds  ;  and  the  other  heir  had 
not  then  agreed  to  sell.  Four  days  after- 
wards, the  widow  committed  suicide.  On 
the  9th  of  June,  all  the  heirs  convej^ed 
to  the  auction  purchaser,  dating  the  deed 
May  13.  The  plaintifi",  as  administrator 
of  the  widow,  brings  tliis  action  for  her 


share  of  the  proceeds  of  sale  against  one 
of  the  heirs,  who  had  received  one  portion 
of  such  proceeds  for  himself,  and  another 
as  guardian  of  a  minor  heir.  Held,  the 
action  could  not  be  maintained.  Dewey, 
J.,  says  (in  substance)  :  "  She  did  not 
perform  the  act  stipulated  in  the  bond,  as 
the  consideration  for  her  receiving  her 
proper  share  of  the  proceeds  of  the  sale. 
This  claim  cannot,  therefore,  be  enforced 
by  her  administrator  as  a  claim  arising 
upon  a  specific  performance  of  her  con- 
tract. The  only  valid  contract  was  that 
of  the  9th  of  June.  The  antedating  of  the 
deed,  as  of  13th  May,  had  no  legal  opera- 
tion to  make  it  take  effect  on  that  day. 
The  date  written  in  a  deed  is  of  no  eflect. 
It  is  the  time  of  the  actual  execution  that 
fixes  the  rights  under  it.  On  the  9th  of 
June,  a  change  of  the  interest  of  the  heirs 
at  law  had  occurred.  Previous  to  the 
decease  of  Anna  Carter,  she  held  the  land 
subject  to  her  right  of  dower.  After  that 
event,  they  held  in  themselves  an  unin- 
cumbered title.  ■  There  was  on  9th  June 
no  incumbrance  of  a  widow's  right  of 
dower.  During  her  lifetime,  no  money 
was  paid  or  tendered  to  her.  Upon  her 
death,  all  her  interest  in  the  bond  was 
gone.  She  had  parted  with  nothing  by 
any  conveyance  of  hers  ;  and  no  i-emain- 
ing  interest  of  hers  could  have  been  con- 
veyed by  her  administrator  under  any 
authority  to  carry  into  effect  her  contracts, 
inasmuch  as  her  interest  was  personal, 
and  terminated  at  her  death."  Fletcher 
V.  Carter,  10  Cush.  81,  84. 

(o)  So  the  title  of  the  obligor  in  a  bond 
for  conveyance  is  not  affected  by  a  deed 
tendered  by  him,  which  was  never  accepted 
nor  delivered.  Cole  v.  Gill,  14  Iowa, 
.527. 

(b)  A.  conveyed  an  equity  of  redemp- 
tion to  B.  The  attorney  of  B.  gave  A.  a 
memorandum  in  writing,  that  he  would 
procure  from  B.  an  agreement  to  sell  A. 
the  premises  on  payment  of  a  specified 
sum,  but  no  such  agreement  was  executed. 
Held,  not  a  mortgage,  but,  at  most,  an 
agreement  to  sell.  Chapman  v.  Ogden, 
30  111.  515. 


CHAP.  I.]   NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC.         6 

purchase-money,  and  expressly  reserving  the  title  to  the  vendor, 
till  such  payment,  the  effect  is  the  same  as  that  of  a  conveyance 
and  mortgage  back,  —  the  vendor  retains  a  lien  for  the  price,  even 
as  against  subsequent  purchasers  or  incumbrancers  with  notice.^ 
So  it  is  held,  in  general,  that,  as  agreements  for  the  sale  of  lands 
are  executory  contracts,  the  acceptance  of  a  deed,  in  pursuance  of 
a  contract,  is  primd  facie  an  execution  of  the  agreement,  which 
thenceforth  becomes  void,  and  of  no  further  effect ;  ^  except,  as  is 
said,  in  case  of  a  covenant,  which  does  not  look  to,  nor  is  con- 
nected with,  the  title,  possession,  quantity,  or  emblements  of  the 
land.^(a)  Thus  a  covenant,  in  an  agreement  to  sell  and  convey 
land,  that  it  shall  be  "  free  and  clear  of  all  incumbrances,"  is 
merged  in  the  subsequent  deed  ;  and  the  grantee  can  claim  only 
under  the  covenant  in  such  deed,  even  though  the  agreement  and 
the  deed  are  made  by  different  parties."^  So,  upon  an  agreement 
for  the  sale  of  land,  the  price  to  be  paid  "  as  soon  as  it  can  be 
ascertained  that  the  title  to  the  premises  is  good  and  unincum- 
bered," the  purchaser  is  bound  to  examine  the  title  before  taking 
his  deed,  and  cannot  afterwards  claim  under  the  agreement.^  So 
the  purchaser  of  the  interest  of  a  party,  under  a  mere  executory 
contract,  is  presumed  to  buy  with  notice  of,  and  subject  to,  the 
legal  title.^  So,  under  a  naked  contract  of  purchase,  which  is 
silent  on  the  subject  of  possession,  the  purchaser  acquires  no  right 
to  possession  or  entry ;   and,  if  he  enter  in  pursuance  of  a  parol 

1  Moore  v.  Anders,  14  Ark.  G28.  *  Carr  v.  Roach,  2  Duer,  20. 

2  Bull  V.  Willard,  9  Barb.  641 ;  Jones         5  ibid. 

V.  Wood,  16  Penn.  25.  6  Fosgate  v.  The  Herkimer,  &c.,  12 

3  Ibid.  Barb.  352. 

•  (a)  Upon  the  same  principle,  a  bond  or  lands  is  held  not  merged  in  the  deeds  of 

written  agreement  for  conveyance  is  held  conveyance  ;   and,  if  one  of  the  parties 

to  merge  all  prior  parol  agreements  and  agrees  to  satisfy  and  discharge  a  mortgage 

negotiations.     Bullett  v.  Worthington,  3  on  his  land,  in  addition  to  the  execution 

Md.  Ch.  99  ;  Parkhurst  v.  Van  Cortlandt,  and  delivery  of  the  deeil,  tlie.-^e  arc  sepa- 

1  Jolins.  Ch.  273.     But  where  a  vendor  rate  and  distinct  acts,  and  performance  as 

pointed  out  to  the  agent  of  the  vendee  two  to  one  will   neither  extinguish    nor  dis- 

fractions,  wlien  showing  him  a  tract  of-  charge   his  obligations   as    to   tlie  other, 

fered  for  sale,  represented  tliem  as  valu-  Bennett  v.  Abrams,  41  Barb.  619. 
able,  and   gave  a  written  description  of         A  vendor  agreed  to  convey  land  by  a 

the  improvements  on  the  fractions  to  be  deed  to  be  given  immediately  ;  tlie  ven- 

submitted  to  the  vendee,  and  the  agent  dee,  that   the  vendor   should   remain  in 

understood  that  the  whole  tract  was  of-  possession  some  months.     The  deed  was 

fered,  and  possession  of  the  fractions,  with  given  ;  and  the  plaintiff  bought  the  i)rem- 

the  tract,  was  delivered  to  the  vendee,  but  ises  of  tlie  vendee,  having  notice  of  these 

they  were   omitted  in  the  deed ;    it  was  facts,   and    brought    suit    for    jiossession. 

held,  that  the  fractions  were  included  in  Held,  the  agreement  remained  in  force, 

the  sale.     Barraque  v.  Siter,  4  Eng.  545.  and  the  action  could  not  be  maintained. 

An  oral  contract  for  the  exchange  of  Morris  i'.  Whitchcr,  20  N.Y.  (6  Smith),  41. 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  I. 


license  from  the  vendor,  the  possession  is  an  interest  distinct  from 
that  acquired  under  the  contract,  and  is  subject  to  sale  on  exe- 
cution.^ 

2.  Possession  under  an  executory  contract  will  not  render  the 
contract  valid,  if  otherwise  void  for  illegality.  Thus  where  a 
colonist,  having  a  grant  of  land  in  Texas,  contracted  to  sell  it 
before  the  expiration  of  six  years  after  receiving  his  grant,  and  to 
make  a  fidl  conveyance  as  soon  as  the  law  would  permit,  and  the 
purchaser  went  into  possession  at  the  time  of  the  contract,  and 
made  valuable  improvements,  such  contract  being  contrary  to 
law ;    held,  it  was  void,  and  could  not  be  enforced.2(a) 

3.  But  whether  an  agreement  for  the  sale  of  land  is  executed, 
a  present  conveyance  passing  title,  or  executory,  contemplating 
a  further  assurance,  depends  upon  the  intention  of  the  parties,  as 
collected  from  the  whole  instrument.^  And,  in  equity,  a  contract 
of  sale  of  land  is  not  merely  executory,  but  the  vendee  becomes  the 
otvner,  with  reference  to  all  benefits  and  losses, (J)  and  the  vendor 


1  Kellogg  V.  Kellogg,  6  Barb.  116. 

2  Hunt  V.  Robinson,  1  Tex.  748. 

(a)  The  claim  for  improvements  upon 
public  lands  often  turns  upon  the  distinc- 
tion in  tlie  text. 

A  person  cannot  be  called  a  settler  or 
possessor  in  (jood  faith,  entitled  to  compen- 
sation for  improvements,  who,  on  being 
informed  of  the  claim  of  another  to  land 
occupied  by  him,  does  not  have  his  claim 
surveyed  by  a  proper  surveyor.  Sartain 
V.  Hamilton,  12  Tex.  219. 

Nor  wlien,  without  showing  any  de- 
fect in  the  title  of  liis  vendor,  he  elects  to 
be  dispossessed,  rather  than  pay  the  pur- 
chase-money. Allen  V.  Mitchell,  13  Tex. 
373. 

Where  persons  make  improvements, 
with  notice  of  a  prior  grant,  they  do  it  at 
their  peril.  Howard  v.  Richeson,  13  Tex. 
553. 

One  entering  under  a  bond  for  a  deed 
does  not  hold  adversely,  under  color  of 
title ;  and  ought  not  to  be  allowed  the 
value  of  his  improvements,  as  a  set-ofF  to 
damages.     Kilburn  v.  Ritchie,  2  Cal.  145. 

A  tenant,  who  disclaims  tlie  title  of 
his  landlord,  cannot,  if  defeated,  have 
improvements.  McQueen  v.  Chouteau, 
20  Mis.  222. 

A  claim  for  permanent  improvements, 
made  under  an  adverse  claim  of  title 
by  a  judgment,  must  follow  tlie  disposi- 
tion of  that  title.  Stillman  v.  Young,  16 
lU.  318. 


3  Bortz  V.  Bortz,  48  Penn.  382. 


A  purchase  from  the  government,  by 
lawful  entry  in  the  proper  office,  and  a 
certificate  of  purchase,  give  to  tiie  buyer 
the  same  equitable  title,  as  in  case  of  sale 
by  an  individual  owner  in  fee,  and  the 
same  rules  determine  the  validity  of 
the  purchase  in  both  cases.  Brill  v. 
Stiles,  35  111.  305. 

(}>)  So  it  has  been  held,  that  payment 
and  entry  vest  even  a  legal  title  in  the 
party  who  holds  a  bond  for  titles,  which 
lie  may  enforce  by  an  action  at  law. 
Hence,  equity  will  not  interpose  by  in- 
junction, though  tlie  obligor  has  threat- 
ened to  sell  the  property,  or  entered  and 
carried  off  the  crops.  Peterson  v.  Orr, 
12  Geo.  464.  The  following  case  illus- 
trates the  question  of  title  growing  out  of 
the  contract  of  sale  and  purchase,  and 
the  effect  of  part-performance  upon  such 
title : 

Action  against  a  town  under  the  Re- 
vised Statutes  (of  Massachusetts),  c.  18,  § 
7,  for  the  destruction  of  a  house  to  prevent 
the  spread  of  a  fire ;  brought  by  one  who 
had  no  other  title  than  a  parol  contract 
for  a  deed  when  he  should  have  paid  tlie 
purchase-money.  The  purchase-money 
not  having  been  paid,  held,  the  action  did 
not  lie,  the  plaintiff  not  being  an  owner 
within  the  terms  of  the  act.  Bigelow,  J., 
says  :  "  He  then  had  neither  a  legal  nor 
equitable  title  to  the  premises.     He  had 


CHAP.  I.]   NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC.         7 

is  seised  in  trust  for  him ;  which  trust  attaches  to  the  land,  and 
binds  all  who  claim  under  the  vendor  with  notice.^  More  cs})C- 
cially  where  a  vendor  gave  a  bond  for  a  conveyance,  clear  of  all 
incumbrances,  u{)on  payment  of  notes,  payal)le  at  various  dates, 
and  the  vendee  took  immediate  possession  ;  held,  the  vendee  was 
liable  for  taxes  assessed  upon  the  land  since  his  possession,  and 
could  not  require  a  deed  with  covenants  against  the  lien  of  such 
taxes.^  So  an  article  of  agreement,  under  seal,  for  the  purchase 
of  land,  is  not  a  mere  chose  in  action,  but  gives  an  interest  in  the 
land,  wliich  is  within  the  provisions  of  the  (Pa.)  recording  acts, 
and  which  may  be  bound  by  judgment.  So,  where  the  vendee, 
after  paying  part  of  the  purchase-money,  and  being  in  possession, 
assigns  all  his  right  and  interest  in  the  contract  to  a  creditor  as 
collateral  security;  such  assignment  is  but  a  mortgage,  and,  if  not 
duly  recorded,  will  be  postponed  to  subsequent  judgments,'^(a) 

4.  Upon  the  same  principle,  by  a  general  devise,  an  estate 
passes,  in  which  the  devisor  has  acquired  an  equitable  title  by 
a  contract  of  purchase  ;  ^  more  especially  where  a  written  agree- 
ment for  the  purchase  of  an  estate  has  been  executed.^     So  an 


1  Reed  v.  Lukens,  44  Penn.  200 ; 
Gary  v.  Whitney,  48  Maine,  516  ;  Linscott 
V.  Buck,  33  Maine,  530. 

2  Miller  v.  Corey,  .15  Iowa,  1G6. 

3  Russell's  Appeal,  15  Penn.  319. 

4  Broome    v.    Mouck,    10    Ves.   597 ; 


Potter  V.  Potter,  1  Ves.  437;  Davie  v. 
Bcardsham,  1  Cha.  Cas.  39 ;  Milner  v. 
Mills,  Mose,  123  ;  Capel  v.  Girdler,  9 
Ves.  509.  See  Vernon  v.  Vernon,  7 
E.  8. 

*  Rose  V.  Cunj'ngharae,  11  Ves.  550. 


not  such  a  right  as  would  enable  liim  to 
claim  and  enforce  a  conveyance  from  the 
owner  of  the  legal  estate.  Assuming  the 
ground  taken  by  the  plaintiff  to  be  cor- 
rect, upon  which  we  express  no  opinion, 
that  a  full  and  clear  equitable  title  would 
come  within  the  provisions  of  the  statute, 
so  that  a  cestui  que  trust  could  be  con- 
sidered an  owner,  and  entitled  to  claim 
compensation,  it  is  clear  that  the  plaintiff 
did  not  hold  even  such  a  title  to  the 
estate  at  the  time  of  the  fire."  Ruggles 
V.  Nantucket,  11  Cush.  433,  436. 

An  agreement  to  convey  passes  an 
equitable  fee,  though  not  expressing  that 
the  conveyance  shall  be  made  to  the  ven- 
dee and  his  heirs.  Bodley  v.  Ferguson, 
30  Cal.  511. 

(a)  In  regard  to  the  equitable  owner- 
ship of  a  purchaser  before  actually  taking 
a  conveyance,  it  has  been  recently  held  in 
Pennsylvania,  that,  although  a  purchaser 
has  not  paid  the  purchase-money,  he  is 
still  the  owner  in  equity,  subject  to  the 
liability  for  such  payment.     The   Court 


say :  "  When  a  part  of  tlie  purcliase- 
money  is  paid,  the  interest  of  the  pur- 
chaser in  the  land  is  not  circumscribed 
by  the  extent  of  the  money  paid,  but 
embraces  the  entire  value  of  the  land 
over  and  above  the  purchase-money  due. 
He  is  treated  as  the  owner  of  the  whole 
estate,  incumbered  only  by  the  purchase- 
money.  If  the  land  increase  in  value,  it 
is  his  gain  ;  if  it  decrease,  if  improve- 
ments are  destroyed  by  fire  or  otherwise, 
it  is  his  loss."  Siter's  Appeal,  26  Penn. 
178,  180.  In  a  very  late  case  it  is  held, 
that  a  purchaser  of  land,  imder  an  agree- 
ment tliat  he  may  take  innnediate  posses- 
sion, and  tliat  the  price  shall  be  paid  on 
demand,  acquires  an  immediate  equitable 
title.  The  agreement  is  not  a  covenant 
or  condition  for  immediate  jiossession, 
the  breach  of  wliich  will  avoid  the  con- 
tract. And  an  action  lies  for  the  price, 
though  a  i)ui!ding  on  the  land  has  been 
burned ;  the  i)urchaser  having  an  insur- 
able interest  tlierein.  M'Kecliine  v.  Ster- 
ling, 48  Barb.;  Law  Reg.  Dec.  '67,  p.  128. 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  I. 


equitable  title,  acquired  after  a  general  devise,  passes  by  repub- 
lication of  the  will.^  In  such  cases,  the  vendor  is  regarded  as  a 
trustee  for  the  vendee.2(a) 

5.  And  the  same  general  principle  has  been  applied  to  the  ques- 
tion of  an  implied  revocation  of  a  will,  by  subsequent  marriage 
and  birth  of  children.^ 

6.  The  same  rule  of  equity  sometimes  involves  the  question,  as 
to  the  fund,  making  part  of  the  estate  of  the  testator,  from  which 
purchase-money  shall  be  paid.  Upon  the  principle  above  stated, 
the  devisee  or  heir  of  a  purchaser  may  call  for  application  of  the 
personal  estate  in  payment  for  the  land.^  The  liability  of  real 
and  personal  representatives,  in  respect  of  such  contract,  is  regu- 
lated by  that  of  the  party  at  his  death.  If  he  could  not  be  com- 
pelled to  take  the  estate,  the  heir  cannot  insist  on  having  it,  and 
that  the  personal  estate  shall  pay  for  it.^  But  administrators 
cannot  assign  the  contract,  or  compel  its  performance,  without 
consent  of  the  heirs. ^(6) 

7.  The  doctrine,  that  a  party  claiming  under  a  will  cannot  dis- 


1  Broome  v.  Monck,  10  Ves.  597. 

2  Darris's  case,  3  Salk.  85. 

,     3  Marston  v.  Roe,  8  Ad.  &  Ell.  14. 

(a)  A  third  person  articled  to  purchase 
lands  in  trust  for  the  testator,  who,  before 
any  conveyance,  by  will  disposed  of  all 
his  freehold  estate.  Held,  the  lands  ar- 
ticled for  passed  by  the  will.  Greenhill 
V.  Greenhill,  2  Vern.  679. 

Before  the  making  of  a  will,  the  an- 
cestor of  the  testator  had  contracted  for 
the  purchase  of  an  estate,  of  which  pos- 
session was  given,  but  no  conveyance 
executed.  The  purchaser  then  died  in- 
testate, leaving  the  testator  his  heir  at 
law  and  sole  next  of  kin.  The  testator 
then  made  his  will,  and  afterwards  the  es- 
tate was  conveyed  to  him.  Held,  the 
estate  was  not  after-acquired  property,  but 
included  in  the  devise.  Marston  r.  Roe, 
8  Ad.  &  Ell.  14. 

One  possessed  of  three  species  of 
estates  in  the  county  of  H.,  viz :  one  by 
articles  wholly  executory,  another  exe- 
cutory in  part,  and  a  third  (being  an 
advowson)  completely  executed  by  a  re- 
cent conveyance,  devises  to  his  wife  as 
follows :  "  All  the  manors,  messuages, 
advowsons,  and  hereditaments  in  the 
county  of  H.,  for  the  purchase  whereof  I 
have  already  contracted  and  agreed,  or 
in  lieu  thereof  the  money  arising  by  the 
sale  of  my  real  estate  in  the  county  of 


4  Broome  v.  Monck,  10  Ves.  597  ; 
Milner  v.  Mills,  Mose,  123. 

5  Broome  v.  Monck,  10  Ves.  597. 

t>  Champion  v.  Brown,  6  Johns.  Ch.  898. 

L. ;"  (with  directions  for  completing  the 
contracts.)  Held,  the  advowson  shall 
pass.  St.  John  v.  Bishop,  &c.  2  Bl.  930 ; 
1  Cowp.  94. 

(6)  A  devisee,  claiming  the  benefit  of  a 
contract  for  the  purchase  of  an  estate, 
directed  to  go  to  tlie  uses  of  the  will,  the 
title  of  which  proves  defective,  has  no 
claim  upon  the  personal  estate ;  either  to 
have  the  purchase-money,  or  another  es- 
tate purchased,  or  the  purchase  completed 
notwithstanding  the  defect.  Broome  v. 
Monck,  10  Ves.  597. 

A.  makes  a  lease  to  B.  for  seven  years, 
and  on  tlie  lease  is  indorsed  an  agreement, 
that,  if  B.  shall  within  a  limited  time  be 
minded  to  purchase  the  inheritance  for 
.£3,000,  A.  would  convey  to  him  for  that 
sum.  B.  assigns  to  C.  the  lease  and  the 
benefit  of  this  agreement.  A.  dies,  and 
by  will  gives  all  his  real  estate  to  D. 
and  all  his  personal  to  E.  and  D.  equally. 
Within  the  limited  time,  but  after  the 
death  of  A.,  C.  claims  the  benefit  of  the 
agreement  from  D.,  who  accordingly  con- 
veys to  C.  for  £3,000.  Held,  this  sum, 
when  paid,  is  part  of  the  personal  estate 
of  A.,  and  E.  is  entitled  to  one  moiety 
of  it  as  such.  Lawes  v.  Bennett,  1  Cox, 
167. 


CHAP.  I.]   NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC.  9 

pute  any  of  its  provisions,  but  must  elect  to  affirm  or  repudiate  it 
m  toto,  has  been  applied  to  the  devise  of  land  merely  contracted 
for.  Thus,  in  case  of  a  will,  directing  that,  if  the  testator  shall 
enter  into  contracts  for  the  purchase  of  lands,  and  die  before  the 
conveyance,  such  contracts  shall  be  carried  into  execution,  the 
money  paid  out  of  his  personal  estate,  and  the  conveyance  be  to 
his  trustees,  their  heirs,  (fcc,  to  the  uses  of  his  will ;  the  heir  at 
law,  having  interests  bequeathed  to  him,  is  put  to  an  election. ^ 

8.  Where  one  devises  land,  and  afterwards  articles  for  valuable 
consideration  to  sell  or  settle  them,  this  in  equity  is  a  revocation 
of  the  will ;  as  much  so  as  a  conveyance  would  be  at  law. 
Whether  the  abandonment  of  the  contract  would  set  up  the  will 
again,  without  republication,  has  been  questioned. ^  On  the  other 
hand,  if  the  owner  of  an  equitable  fee  devises  it,  and  afterwards 
the  legal  fee  is  conveyed  to  him,  the  will  is  not  thereby  revoked, 
because  such  conveyance  was  incident  to  the  equitable  fee  devised. 
But,  if  he  afterwards  take  a  qualified  conveyance  of  tlie  legal  fee, 
for  the  purpose  of  preventing  dower,  it  is  a  revocation,  being  a 
change  in  the  quality  of  the  estate,  and  not  incident  to  the  equi- 
table fee.^ 

9.  If,  after  a  devise  of  all  one's  real  and  personal  estate,  he 
articles  to  purchase  lands,  and  then  dies,  they  pass  to  the  heir; 
although,  if  the  articles  had  been  made  before  the  will,  the  estate 
would  have  passed  by  it.*  So  a  testator  entered  into  a  contract 
for  the  purchase  of  an  estate,  and  the  vendor  agreed  to  convey  to 
the  purchaser,  his  heirs,  appointees,  or  assigns.  Subsequently 
to  the  contract,  the  purchaser  made  a  codicil,  by  which,  after 
reciting  the  contract,  he  devised  the  estate  to  his  executors  and 
trustees,  upon  the  trusts  therein  mentioned.  He  afterwards  took 
a  conveyance  from  the  vendor,  to  the  usual  uses,  to  bar  dower. 
Held,  the  conveyance  operated  as  a  revocation  of  the  devise.^(a) 

1  Thellusson  v.  Woodford,  13  Ves.  209.         3  Ward  v.  IVfoore,  4  Madd.  368. 

2  Bennett  v.  Lord  Tankerville,  19  Ves.         *  Langford  v.  Pitt,  2  P.  Wnis.  629. 
170.  5  Bullin  V.  Fletcher,  1  Kee.  369. 

(a)  A  testator  devises  all  his  freehold  to  purchase,  devises  them  to   the   same 

and  copyhold  manors,  &c.,  and  real  estate  trustees,  upon  the  trusts  of  his  will,^  and 

whatever,  upon  certain  trusts  ;  and  gives  to  directs  that  tlie  purciiase-nioneys  shall  be 

the  same  trustees  a  sum  of  £35,000  to  lay  taken  as  part  of  the  £o"),000  ;  confirming 

out  in  the  purchase  of  lands,  to  be  settled  his  will  in  all  other  resjiccts.     Held,  the 

upon   the   same   trusts.      He    afterwards  codicil  amounts  to  a  republication  of  the 

contracts  for  the  purchase  of  several  es-  will,  so  as  to  pass,  not  only  the  estates 

tates ;  and  by  a  codicil,  specifying  some  therein  specified,  but  all  the  estates  con- 

of  the  estates  which  he  had  so  contracted  traded  for.  Hulme  v.  Heygate,  1  Mer.  285. 


10  LAW  OP  VENDORS  AND  PURCHASERS.       [CHAP.  I. 

10.  It  has  been  held,  that  an  estate  which  the  testator  had  con- 
tracted to  sell  will  pass  by  a  devise  of  all  his  real  and  personal 
estate  to  trustees,  in  trust  to  sell.^(a) 

11.  The  title  of  a  purchaser  passes  by  descent  to  his  heirs.^  So, 
although  a  purchaser,  before  the  conveyance,  has  neither  a  legal 
nor  equitable  right  as  against  the  seller,  until  he  pay  the  purchase- 
money  ;  yet,  upon  the  same  principle  of  equitable  oivnership,  his 
equitable  estate  is  subject  to  his  control,  and  to  the  lien  of  judg- 
ments obtained  against  him.  But  Equity  will  enjoin  the  cutting 
of  timber,  by  a  person  who  has  got  possession  under  articles  to 
purchase.^ 

12.  Although,  as  a  general  rule,  a  mere  agreement  of  sale  and 
purchase  is  merged  in  the  actual  conveyance,  yet,  by  a  well-estab- 
lished principle  of  Equity  jurisprudence,  the  Court  will  correct  a 
mistake(J)  in  a  written  contract,  if  clearly  shown,  even  by  parol 
evidence.  So,  a  fortiori,  the  Court  will  reform  a  deed,  entered  into 
under  a  previous  agreement,  by  ordering  a  fresh  conveyance  ;  from 
which  a  covenant  will  be  expunged  which  was  not  contained  in 
that  agreement,  or  contemplated  by  the  covenantor,  even  though 
such  covenant  was  introduced  by  the  attorney  of  the  covenantor 
(but  without  his  express  authority)  .*(c) 

1  Wall  V.  Bright,  1  Jac.  &  Walk.  494.       138 ;   Baldwin  v.  Belcher,  1  Jo.  &  Lat. 

'^  Broome  v.  Monck,  10  Ves.  597.  18. 

3  Crockford  v.  Alexander,  15  Ves.  jun.         ■*  Rob  v.  Butterwick,  2  Price,  190. 

(a)  A  testator,  having  devised  free-  before  they  were  completed.  The  pur- 
holds  and  copyholds  to  the  same  persons,  chasers  afterwards  abandoned  their  con- 
afterwards  executed  a  marriage  settle-  tracts,  because  they  were  unable  to  pro- 
ment,  by  which  he  bargained  and  sold  the  cure  a  conveyance  from  some  of  the 
freeholds  to  trustees  and  their  heirs,  to  the  devisees,  who  were  infants.  Held,  though 
use  of  himself  during  his  life,  and,  after  the  contracts  were  properly  abandoned, 
his  death,  to  the  intent  that  the  wife  might  the  will  was  revoked.  Tebbott  v.  Voules, 
receive    annually    a    rent-charge,    which  6  Sim.  40. 

was  secured  by  powers  of  distress  and  Agreement  for  the  sale  of  an  estate  at 
entry,  and  by  a  term  of  years ;  and  sub-  a  future  time.  Before  that  time,  the 
ject  to  the  rent-cliarge  and  the  term,  to  vendor  died  intestate.  Held,  the  rents 
the  use  of  the  settlor,  his  heirs  and  accrued  between  the  vendor's  death  and 
assigns ;  and  covenanted  to  surrender  the  the  time  fixed  belonged  to  his  heirs, 
copyholds  to  the  uses  of  the  settlement.  Lumsden  v.  Fraser,  12  Sim.  263. 
The  testator  died,  leaving  his  wife  sur-  A  testator  devised  his  estates  to  trus- 
viving,  without  having  surrendered  the  tees,  in  trust  to  sell,  their  receipts  to  be 
copyholds.  Held,  the  covenant  to  sur-  sufficient  discharges ;  and  directed  them 
render  did  not  operate  as  an  entire  revo-  to  complete  any  contracts  for  sale  remain- 
cation  of  the  devise  of  the  copyholds,  but  ing  incomplete  at  his  death.  Held,  his 
only  so  far  as  the  particular  purposes  of  executor  was  the  proper  party  to  give 
the  settlement  required.  Vawser  v.  receipts  for  the  purchase-moneys  of  such 
JefFery,  3  Russ.  479.  estates.     Eaton  v.  Sanxter,  6  Sim.  517. 

A  testator  devised  all  his  real  estates  {b)  See  Mistake. 

to  his  children,  equally,  and  afterwards  (c)  Tenants  in  common  agreed  to  make 

entered  into  contracts  for  a  sale,  but  died  partition  pursuant  to  an  award,  and  exe- 


CHAP.  I.]   NATURE  OF  THE  CONTRACT  FOR  A  SALE,  ETC. 


11 


13.  But  Equity  will  not  interpose  to  amend  a  written  instru- 
ment, without  the  clearest  and  most  satisfactory  proof  of  the  mis- 
take, and  of  the  real  agreement,  especially  where  the  mistake  is 
denied  in  the  answer.i(a)  So,  where  a  contract  is  entered  into  for 
the  sale  of  an  estate,  and,  under  general  words,  property  passes 
which  the  vendor  insists  he  did  not  intend  to  sell,  but  the  purchaser, 
by  his  answer,  denies,  or  does  not  admit,  that  it  was  not  in  his 
contemplation  at  the  time  of  the  purchase ;  it  seems  the  vendor 
cannot  sustain  a  bill  against  the  purchaser,  to  have  the  contract 
rectified  on  the  ground  of  mistake,  and  carried  into  execution. 
And  it  is  even  doubted,  whether,  consistently  with  the  Statute  of 
Frauds,  the  Court  can  entertain  such  bill,  even  where  the  mistake 

^  Lyman  v.  United  Ins.  Co.  2  Jolins.  Ch.  030. 


cuted  deeds  for  that  purpose.  In  the  deed 
to  the  plaintiif,  a  tract  assigned  to  him  was 
omitted  by  mistake.  The  parties  took 
possession  according  to  tlieir  deeds.  Held, 
the  mistake  should  he  rectified,  and  a 
specific  performance  of  the  contract  de- 
creed as  to  the  tract  omitted.  Tilton  v. 
Tilton,  9  N.  Hamp.  385. 

E.  (carrying  on  business  under  the 
name  of  W.  Factory),  being  indebted, 
proposed  to  his  creditors  in  a  writing, 
signed  by  his  agent,  as  follows  :  "  A  deed 
of  trust  of  all  tlie  property  to  be  executed 
for  the  p.ayment  of  such  notes  already 
given  by  said  Factory,"  &c.,  as  may  be 
renewed  for  twelve  months,  payable  after- 
wards in  monthly  payments.  This  pro- 
posal was  accompanied  by  another  paper, 
headed,  State  of  Warren  Factory,  and  in- 
cluded in  its  recitals^  among  other  prop- 
erty, "  Factory  Pratt  Street."  It  was 
accepted  by  some  of  his  creditors,  and  a 
deed  of  trust  executed.  It  appeared  that 
the  "  Factory  Pratt  Street"  was  situated 
on  tico  lots  of  ground,  which  belonged  as 
well  to  E.  as  his  brothers  and  sisters  ;  but 
the  deed  of  trust,  in  which  the  brothers 
and  sisters  united,  by  mistake  of  all  par- 
ties, omitted  one  of  those  lots.  Before 
tlie  discovery  of  this  mistake,  two  credi- 
tors obtained  judgments  at  law,  one  before 
and  one  after  the  trustees  took  possession. 
Bill  to  reform  the  deed,  add  tlie  omitted 
lot,  and  enjoin  the  creditors  from  proceed- 
ing at  law  against  that  lot.  Held,  that 
the  former  creditor,  not  having  notice  of 
the  original  contract,  might  proceed  at 
law ;  but  the  other,  having  received  a 
dividend  from  the  trvistees,  thereby  be- 
came an  equitable  party  to  the  deed,  and 
could  not  enforce  his  judgment,  in  opposi- 
tion to  the  agreement  on  which  the  deed 


was  founded.  Upon  these  principles,  the 
deed  was  decreed  to  be  reformed  in  con- 
formity with  the  original  contract.  Moale 
V.  Buchanan,  11  Gill  &  J.  314. 

((()  The  defendant,  in  writing,  agreed 
to  convey  to  the  plaintiff,  on  payment  of  a 
certain  sum,  "  a  lot  of  land  situated  in  the 
town  of  Windham."  The  plaintitt',  alleg- 
ing that  there  was  a  mistake  in  tlie  con- 
tract, and  that  the  whole  of  a  particular 
lot  was  intended  to  be  embraced  by  it, 
though  a  jiart  of  the  lot  lay  in  the  town  of 
Wcnthrook,  brought  his  bill  to  have  the 
mistake  corrected,  and  specific  perform- 
ance decreed  of  the  contract  as  amended. 
Held,  parol  evidence  was  inadmissible  to 
vary  the  written  contract.  Elder  v.  El- 
der, 1  Fairf.  80.  So  a  bill  to  rectify  a 
conveyance,  alleged  to  have  passed  by 
mistake  more  than  was  included  in  a  pre- 
vious agreement,  was  dismissed  ;  the  con- 
veyance reciting  a  more  extended  agree- 
ment, the  parties  being  dead,  the  agent  of 
the  grantor  having  acknowledged  the 
extended  agreement,  and  the  agent  of  the 
grantee,  who  could  have  given  a  personal 
account  of  the  transaction,  not  having 
been  examined  by  the  plaintiff.  Beau- 
mont V.  Bramley,  Turn.  &  Russ.  41. 

A  marriage  settlement  recited  an  agree- 
ment to  convey  a  certain  estate,  save  and 
except  the  lands  of  Ball^iienry  and  its 
subdenominations  ;  but  the  operative  part 
of  the  deed  purported  to  convey  by  name, 
as  a  sejiarate  denomination,  tlie  lands  of 
Killahan,  which,  it  was  proved,  were 
reputed  a  subdenoinination  of  Ballylieiiry. 
Held,  that  there  was  not  siitticient  evi- 
dence of  mistake  to  justify  the  Court  in 
striking  Killahan  out  of  the  settlement. 
Alexander  v.  Crosbie,  1  Lloy.  &  Goo. 
145. 


12  LAW   OF   VENDORS    AND    PURCHASERS.  [CHAP.   I. 

is  admitted  by  the  answer.^  So  a  purchaser  cannot  claim  premises 
which,  though  answering  the  general  description  in  the  advertise- 
ment of  sale,  were  not  in  the  contemplation  of  either  party  at  the  time 
of  the  purchase  or  conveyance ;  the  purchaser  being  referred  to  a 
more  particular  description,  which  did  not  include  them  ;  and  the 
surrender  having  been  made  according  to  that,  and  from  his  own 
instructions.  If  one  party  thought  he  had  purchased  ho7id  fide 
part  of  an  estate,  which  the  other  thought  he  had  not  sold,  it  is  a 
ground  to  set  aside  the  contract.  If  both  understood  the  whole 
was  to  be  conveyed,  it  must  be  :  otherwise,  if  neither  under- 
stood S0.2 

14.  It  has  been  doubted,  whether  the  Court  would  entertain  a 
suit  to  reform  a  mistake,  for  the  discovery  of  matter  constituting  a 
new  case,  after  the  subject  had  been  adjudicated  upon  and  disposed 
of  by  a  foreign  tribunal  of  competent  jurisdiction,  when  it  did  not 
appear  that  the  new  matter  might  not  still  be  made  available  before 
such  tribunal.^  And  parol  evidence  is  not  admissible,  at  law,  to 
show  a  mistake  in  the  conveyance  of  land  sold,  as  compared  with 
the  agreement  of  sale.  Thus  an  agreement  was  made,  in  writing, 
to  sell  and  convey  land,  at  X9  per  acre.  A  deed  was  accordingly 
executed,  expressing  the  number  of  acres,  and  the  purchase-money 
paid  at  that  rate.  Held,  no  parol  evidence  was  admissible,  of  a 
mistake  in  the  quantity ;  and  that  an  action  did  not  lie  for  money 
had  and  received,  to  recover  back  the  amount  alleged  to  be  over- 
paid.^ 

1  Attorney-General  and  Commission-  ^  Marquis  of  Breadalbane  v.  Marquis 
ers,  &c.  V.  Sitwell,  1  You.  &  Coll.  559.  of  Ciiandos,  2  Myl.  &  Cra.  711. 

2  Calverley  v.  Williams,  1  Ves.  211.  *  Howes  v.  Barker,  3  Johns.  506. 


CHAP.   II.]  WHAT   CONSTITUTES   AN   AGREEMENT.  13 


CHAPTER    II. 

"WHAT  CONSTITUTES  AN  AGREEMENT  FOR  THE  SALE  AND  PURCHASE 
OP  LANDS.  DISTINCTION  BETWEEN  A  CONTRACT  AND  A  MERE 
PROPOSAL,    OFFER,   ETC. 

1.  An  offer  does  not  bind,  till  accepted.  7.    Contract  by  several  connected  papers. 

2.  Contract  bj'  corresjjondence. 

1.  Haying  considered  the  distinction  between  an  executory 
sale,  and  an  executed  conveyance,  of  land,  and  the  well-settled 
qualifications  of  that  distinction  in  Courts  of  Equity,  another 
somewhat  analogous  difference  requires  to  be  noticed,  applicable 
as  well  to  a  sale  of  land  as  of  other  property ;  to  wit,  that  between 
a  completed  bargain,  assented  to  by  both  parties,  and  a  mere  pro- 
posal, negotiation,  or  treaty.  Upon  this  point  it  is  held,  that,  if  the 
vendee  accepts  the  vendor's  proposition,  and  pays  money  to  bind 
the  bargain ;  the  vendor  cannot  make  new  terms,  but  specific  per- 
formance will  be  enforced  against  him  and  a  purchaser  with 
notice.^  But  a  contract  will  not  be  specifically  executed,  unless 
upon  a  fair  interpretation  importing  a  concluded  agreement,  and 
not  leaving  it  doubtful  whether  the  transaction  was  more  than  a 
treaty.^  An  offer  of  a  bargain  imposes  no  obligation,  unless 
accepted  according  to  its  terras,  without  qualification,  or  unless 
such  qualification  be  agreed  to.^  Thus  where  A.  signs  a  writing, 
by  which  he  declares  he  will  sell  to  B.  his  house,  &c.,  at  a  certain 
price,  &c.,  this  is  a  mere  proposition,  and  not  a  contract.*  So, 
where  a  material  ingredient  in  the  terms  of  a  contract  has  been 
omitted.  Equity,  considering  it  as  only  resting  in  treaty,  will  not 
decree  a  specific  execution.  Thus,  where  a  tenant  in  possession, 
under  an  article  impeached  by  his  landlord,  proposed  to  pay  an 
increased  rent,  a  bill  by  the  landlord  for  specific  execution  of  the 

1  Keegan  v.  Williams,  22  Iowa,  378.  194  ;  Vicksburg,  &c.  v.  Hamilton,  15  La. 

2  Strafford  v.  Bosworth,  2  Ves.  &  B.  An.  521.     See  Boyd  v.  Cox,  15  La.  An. 
341 ;  Huddleston  v.  Briscoe,  11  Ves.  583.  609. 

3  Eliason    v.    Ilenshaw,    4    Wheaton,         <  Tucker  v.  "Woods,  12  Johns.  190. 
225,  228 ;  Holland  v.  Eyre,  2  Sim.  &  St. 


14 


LAW  OF  VENDORS  AND  PUECHASERS.      [CHAP.  II. 


proposal  was  dismissed ;  the  period,  when  the  increased  rent 
should  commence,  not  being  agreed  on.^  So,  where  A.  sold  land 
to  B.,  and,  on  measurement  after  the  sale,  it  was  found  that  B. 
owned  a  part  of  the  land  sold,  and  A.  offered,  if  B.  would  not  sue 
him,  to  pay  him  back  a  part  of  the  purchase-money,  and  there 
was  no  evidence  of  B.'s  accepting  the  offer ;  held,  B.  could  not 
recover  on  A.'s  promise.^  So  a  proposition  in  writing,  to  sell  land, 
at  a  certain  price,  if  taken  within  thirty  days,  is  a  continuing 
offer,  wliich  may  be  retracted  at  any  time ;  but  if,  not  being 
retracted,  it  is  accepted  within  the  time,  such  offer  and  acceptance 
constitute  a  valid  contract,  the  specific  performance  of  which  may 
be  enforced  by  a  bill  in  equity. ^(a). 

1  Lord  Orraond  v.  Anderson,  2  Ball  &         ^  Bost.  &  M.  Railroad  v.  Bartlett,  3 
Beat.  363.  Cush.  224 ;  Cheney  v.  Cook,  7  Wis.  413. 

'^  Burns  v.  Allen,  11  Ired.  25. 


(a)  In  an  action  to  recover  damages 
for  land  taken  by  a  railroad  company, 
evidence  is  not  admissible,  that  the  plain- 
tiff had  offered  to  claim  no  damages,  if 
the  company  would  locate  the  road  where 
he  wished  it,  and  that,  when  called  on,  he 
declined  to  designate  the  location  he  de- 
sired ;  as  it  was  only  a  proposition,  not 
accepted  by  the  company  at  the  time, 
and  not  binding  upon  the  plaintiff  after- 
wards.   East,  &c.  V.  Hiester,  40  Penn.  53. 

The  plaintiff,  A.,  offered  to  sell  land  to 
the  city  of  New  York  at  a  price  named,  and 
then  formally  withdrew  his  offer ;  subse- 
quently the  city  council  authorized  the 
comptroller  to  purchase  the  land  and  pay 
in  city  bonds ;  then  A.  tendered  a  deed 
and  demanded  payment  according  to  the 
price  named  in  his  offer.  Held,  the 
city  had  not  bought  nor  agreed  to  bu}', 
and  were  not  liable  for  the  price.  Mc- 
Cotter  V.  New  York,  35  Barb.  609. 

A  memorandum,  signed  by  a  purchaser 
at  a  sheriff's  sale  of  land  under  judgment 
in  a  foreclosure  suit,  to  the  effect  that  he 
agrees  to  abide  by  the  conditions  of  the 
sale,  is  not  a  contract  with  the  sheriff, 
his  assignee,  or  any  other  party  to  the 
foreclosure  suit;  if  a  contract  at  all,  it  is 
with  the  court :  but  it  wants  the  essential 
elements  of  a  contract,  as  parties,  mutu- 
ality, and  consideration ;  and  it  will  be 
properly  construed  as  in  reality  a  submis- 
sion to  the  jurisdiction  of  the  court  in  the 
foreclosure  suit,  as  a  purchaser  under  the 
judgment.   Miller  v.  Collyer,  36  Barb.  250. 

Parties  wishing  to  construct  a  railroad, 
on  the  way-leave  principle,  entered  into 
negotiations  with  a  land-owner,  and  pro- 
posed terms,  which  were   discussed  but 


not  agreed  to ;  but  the  company  proceeded 
to  make  the  road.  Held,  the  land-owner's 
acquiescence  did  not  amount  to  an  accept- 
ance of  tlie  terms  proposed.  Meynell  v. 
Surtees,  31  Eng.  Law  &  Eq.  475. 

In  the  same  case,  an  iron  company, 
the  owners  of  a  railway,  wishing  to  make, 
on  the  principle  of  way-leave,  a  branch  of 
their  road  to  connect  it  with  other  roads, 
applied  to  the  several  land-owners,  includ- 
ing one  A.,  for  the  necessary  way-leaves, 
and  received  a  proposal  from  them  that, 
as  they  wished  to  procure  Stanhope  lime 
for  agricultural  purposes,  and  believed 
the  railroad  would  be  of  great  advantage 
to  the  district,  &c.,  they  offered  the  iron 
company  way-leaves  over  their  property 
on  lease  for  sixty  years,  by  payment  of  • 
triple  damages  yearly.  This  proposal 
was  signed  by  A.  and  accepted  by  the 
company,  who  thereupon  agreed  with  the 
plaintiffs,  directors  of  another  railway, 
who  were  to  make  the  line.  The  railway 
company  took  possession  according  to  the 
offer,  and  the  railway  was  made  at  great 
expense,  with  the  knowledge  and  without 
any  objection  of  the  land-owners.  Held, 
there  had  been  a  variation  in  the  parties 
and  subject-matter  of  the  offer,  by  chan- 
ging a  railway  made  for  mineral  traffic 
into  one  for  general  public  conveyance. 
Also,  that  the  instrument  signed  by  A. 
contained  no  such  acceptance  of  the  offer 
as  bound  the  land-owners  to  grant  a  lease 
at  a  rent  on  the  principle  of  triple  damages. 
Lord  Cranworth,  Lord  Ciiancellor,  re- 
marked :  "  It  does  not  purport  to  be  a 
contract  upon  the  face  of  it.  It  is  a  mere 
offer  that  they  will  give  way-leaves  upon 
certain  specified  terms;   and  if  the  par- 


CHAP.    II.] 


WHAT    CONSTITUTES    AN   AGREEMENT. 


15 


2.  But  ail  agreement  for  the  sale  of  an  estate,  the  result  of  a 
correspondence  by  letters,  may  be  good  ^vithin  the  Statute  of 
Frauds. ^(rt)  Thus  the  defendant  authorized  one  A.  to  projiosc  a 
sale  of  land  to  the  plaintiff,  to  be  accepted  within  a  week.  Within 
the  time,  the  plaintiff  by  letter  to  A.  accepted  the  offer,  but  for 
some  time  A.  did  not  inform  the  defendant.  Held,  there  was  a 
binding  contract.^  So  the  defendant,  by  letters,  stated  certain 
terms  on  which  the  plaintiff  might  make  a  road  across  his  land, 
and  he  (the  defendant)  would  convey  the  land  to  him.  The  plain- 
tiff, with  the  knowledge  of  the  defendant,  began  the  work.  Held, 
he  thereby  became  bound ;  that  this  was  a  valid  consideration 
for  the  defendant's  agreement ;  that  the  defendant  could  not 
shut  up  the  road,  after  the  plaintiff  had  performed  his  part  of 
the  contract;  and  that  he  should  be  restrained  by  perpetual  in- 
junction from  obstructing  it ;  but  without  prejudice  to  any  claim 
for  damages  against  the  plaintiff.^(5) 

1  Huddleston  v.  Briscoe,  11  Ves.  583. 

2  AVright  V.  Bigg,  21  Eng.  Law  &  Eq.  591. 

3  N.Y.  &c.  V.  Pixley,  19  Barb.  428. 


ties  to  wliom  that  offer  was  made  had 
accepted  it,  and  said,  '  We  agree  to  that,' 
or  if  they  had  either  done  so  by  writing, 
or  had,  witliout  writing,  by  word  of  montli 
said,  '  We  will  act  upon  it,'  and  had 
taken  it,  no  doubt  tliis  Court  might  have 
treated  tliat  as  a  contract ;  but  an  ofi'er  is 
a  very  different  tiling.  When  I  offer  any 
thing  to  a  person,  what  I  mean  is,  I  will 
do  that  if  you  choose  to  assent  to  it  ; 
meaning,  although  it  is  not  so  expressed, 
if  you  choose  to  assent  to  it  in  a  reason- 
able time.  Whether  that  is  expressed 
or  not,  such  an  offer,  I  should  say, 
undoubtedly,  even  at  any  time,  if  it 
is  not  promptly  accepted,  is  evidently, 
frohi  the  nature  of  things,  revocable." 
Meynell  v.  Surtees,  31  Eng.  Law  &  Eq. 
475,  479. 

An  offer  to  sell  land  at  a  certain  price 
is  an  offer  to  sell  for  cash.  Cammeyer  v. 
United  &c.,  2  Sandf.  Ch.  186. 

The  acceptance  of  such  offer  must  be 
absolute.     Ibid. 

(«)   See  Statute  of  Frauds. 

(b)  On  the  18tli  of  April,  1834,  A.,  in 
writing,  offered  to  sell  B.  certain  land,  upon 
certain  terms,  and  allowed  three  months 
to  decide  upon  the  proposition.  On  tlie 
26th  of  June,  B.  wrote  to  A.,  stating  tliat 
C,  the  father  of  B.,  accepted  tlie  propo- 
sition, and  signed  the  letter,  "B.,.for  his 
father,  C."  On  the  back  of  a  copy  of  this 
letter,  on  the  19th  of  July,  A.  wrote  and 


executed  a  covenant  to  convey  the  land 
to  B.,  "  in  consideration  of  the  within," 
and  "  when  he  shall  have  fulfilled  on  his 
part  the  conditions  of  the  said  agreement, 
a  copy  whereof  is  hereto  annexed."  This 
agreement  was'delivered  to  B.,  who  made 
payments  with  money  advanced  by  C, 
and  took  receipts  as  for  money  paid  by 
C.  B.  took  possession  of  and  cultivated 
the  land,  C.  residing  with  him  till  his 
death.  C.  died,  and  B.  paid  the  balance 
of  the  purchase-money.  The  other  heirs 
of  C.  tlien  filed  their  bill  against  A.  and 
B.,  alleging  that  the  name  of  B.  had  been 
inserted  by  mistake  in  tlie  contract  of 
July  19,  instead  of  that  of  C,  and  praying 
for  a  partition  among  the  heirs  of  C,  an 
account  of  rents  and  profits  against  B., 
&c.  B.,  in  his  answer,  under  oath,  de- 
nied the  mistake,  and  averred  that  the 
money  advanced  for  the  land  had  been 
loaned  to  him  by  C,  to  secure  the  pay- 
ment of  which,  C.  was  to  have  a  lien 
upon  the  land.  Held,  the  averment  in 
the  answer,  as  to  the  loan,  was  now  mat- 
ter, and,  being  unsupjiorted  by  proof, 
was  not  evidence ;  that  the  letter  of  June 
26  sliowed  a  purchase  by  C,  and  could 
not  be  explained  by  parol,  no  mistake 
being  pretended  ;  that  the  written  instru- 
ments above  named,  as  well  as  the  ])arol 
testimony,  showed  that  the  name  of  B. 
was  inserted  by  mistake,  in  the  agree- 
ment of  July  19,  instead  of  that  of  C ; 


16  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  II. 

3.  Where  letters  are  stated  as  the  agreement,  no  testimony 
aliunde  is  admissible :  otherwise,  where  they  are  stated  as  evidence 
of  the  agreement  only.^ 

4.  A  contract,  by  letter,  may  arise,  and  be  specifically  enforced, 
if  the  amount  and  nature  of  the  consideration,  to  be  paid  on  one 
side  and  received  on  the  other,  may  be  ascertained,  and  a  reason- 
able description  is  given  of  the  subject-matter.  The  Court  need 
not  be  satisfied,  that  the  parties  actually  meant  the  same  thing, 
provided  a  clear  assent  be  given  to  a  certain  proposition,  arising 
de  facto  out  of  the  terms  of  the  correspondence.^ 

5.  But  the  Court  will  not  decree  specific  performance  of  an 
agreement  for  a  lease  by  letters,  where  there  is  no  definite  term 
expressed,  nor  any  reference,  aliunde,  by  which  it  might  be  ascer- 
tained.^ 

6.  The  letters,  from  which  a  contract  arises,  may  be  written  by 
the  agents  of  the  respective  parties.  Thus  an  agent,  ordered  to 
buy  a  lease  of  a  house  for  a  certain  sum,  and  sign  an  agreement, 
wrote  to  the  agent  of  the  owner,  offering  that  sum.  The  owner 
wrote  across  this  letter,  "  I  agree  to  sell  my  house  upon  these 
terms  ;  "  and  thereupon  his  agent  wrote  to  the  other  agent,  "  My 
employer  will  take  your  offer,"  "  make  an  appointment  to  meet 
to  draw  the  agreements."  The  next  day,  the  agent  of  the  pur- 
chaser said,  that  his  principal  had  bargained  for  another  house. 
Held,  the  letters  constituted  a  contract  to  buy,  and  specific  per- 
formance was  decreed,  with  costs.* 

7.  Although  mere  proposals  or  negotiations  are  always  to  be 
distinguished  from  a  binding  contract ;  for  the  purpose  of  deter- 
mining the  existence  and  terms  of  a  contract  of  sale  and  purchase, 
various  writings,  connected  with  and  referring  to  each  other,  may 
be  taken  into  consideration,  though  neither  by  itself  would  con- 
stitute a  contract. (a) 

1  Birce  v.  Bletchley,  G  Madd.  17.     See         ^  Gordon  v.  Trevelyan,  1  Price,  64. 
Huddleston  v.  Briscoe,  11  Ves.  583.  *  Cowley  v.  Watts,   17   Eng.  Law  & 

2  Kennedy  v.  Lee,  3  iMef.  441.  Eq.  147. 

and  that  a  decree  was  proper,  ordering  (a)    The   defendant,  by  articles,  con- 

a  partition  among  the  lieirs  of  C,  and  tracted    to    sell    the    piaintifif  400   acres 

directing  that  B.  sliould  account  for  the  of  land,  and  allowance  out  of  two  tracts 

rents  and  profits,  be  paid  for  the  lasting  claimed  by  the  defendant,  on  two  surveys 

improvements  made  by  him,  and  refunded  in  the  names   of  A.  and  B.,  being  the 

the   purchase-money  paid   by   him   since  400  acres  surveyed  on  a  warrant  in  the 

the  death  of  C,  with  interest,  and  that  name   of  C,  for  $1,000.     Subsequently, 

A.  should  convey  to  the  heirs,  according  the  defendant  conveyed  the  latter  tract, 

to   their  respective   interests.      Lynn   v,  containing   430   acres    and    ten    perches 

Lynn,  5  Gilman,  602.  and  allowance,  and,  on  the  same  day,  the 


CHAP. 


II.] 


WHAT   CONSTITUTES    AN   AGREEMENT. 


17 


plaintiff  covenanted,  that  if  this  survey 
should  include  over  400  acres  and  allow- 
ance, he  would  pay  813  per  acre  for  tlie 
excess,  and  the  defendant  sjave  tlie  jilain- 
tiff  a  bond  for  S-B  per  acre  for  every  acre 
included  in  the  C.  survey,  which  nii^ht 
be  recovered  in  two  pending  actions.  In 
these  actions,  5"2  acres  and  55  perches 
and  allowance  were  recovered  from  the 


defendant ;  leaving,  liowever,  of  this  sur- 
vey, 400  acres  and  72  perches.  In  an 
action  on  the  bond,  lield,  the  bond,  cove- 
nant, and  deed  were  to  he  construed 
together,  and,  as  the  jilaintiff"  held  under 
his  deed  over  400  acres  and  allowance, 
the  action  did  not  lie.  Cumniings  i;. 
Antes,  19  Penn.  287. 


18  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 


CHAPTER    III. 


CONSIDERATION   OF   A   CONTRACT    OF   SALE.  —  PRICE. 

1.   Necessity  of  a  consideration.  11.   Mutual  rights  and  duties  of  the  par- 

3.  Nature  of  consideration;  need  not  be  ties  in  connection  with  the  price.  Offer  to 
expressed.  perform,  tender  of  deed,  &c. 

4.  Price;  construction  of  the  agreement  24.  To  whom  the  price  shall  be  paid; 
for.  parties  jointly  interested. 

10.    Sufficiency  of  security  for. 

1.  Contracts  for  the  sale  and .  purchase  of  lands  must  in 
general,  like  others,  be  founded  upon  some  valuable  consideration. 
This  will  be  briefly  noticed  at  present,  as  one  of  the  elements  of  the 
contract.  We  shall  have  occasion,  hereafter,  in  another  connection, 
to  refer  more  at  length  to  the  want,  inadequacy,  or  failure  of  con- 
sideration, as  one  of  the  circumstances  which  render  such  contract 
void.(^a') 

2.  Thus,  upon  a  bill  in  equity  for  specific  performance  against  a 
vendee  of  land ;  it  appeared  that  a  part  only  of  the  vendors,  the 
plaintiffs,  had  become  bound  to  convey  a  good  title.  Held,  the 
contract  should  not  be  enforced,  for  want  of  mutuality. ^  So  an 
agreement,  whereby  the  purchaser  of  a  plantation  binds  himself  to 
transfer  one-half  thereof  to  his  son-in-law,  as  soon  as  the  latter 
shall  pay  for  one-half  of  the  cost,  either  with  his  own  private 
means,  or  with  one-half  of  the  profits  of  the  plantation,  is  void  for 
want  of  mutuality,  and  will  not  be  enforced  by  a  Court  of  Equity ; 
especially  when  the  son-in-law,  fifteen  years  after  the  agreement, 
expresses  his  abandonment  of  all  his  rights  by  a  written  release, 
and  does  not  bring  his  bill  in  equity  until  twenty-seven  years  have 
elapsed  from  the  date  of  the  agreement,  without  any  performance 
or  offer  of  performance  on  his  part.^  So  a  promise,  made  by  one 
who  enters  public  lands,  to  pay  a  prior  occupant  for  improvements 
made  thereon  by  him,  is  without  consideration  and  void.^  So 
there  is  neither  a  legal  nor  moral  obligation,  on  the  owner  of  land, 

1  Bronson  v.  Caliill,  4  McL.  19. 

2  Dorsey  v.  Pack  wood,  12  How.  U.S.  126. 

3  McFarland  v.  Mathis,  5  Eng.  560. 

(a)  See  Fraud,  Rescinding. 


CHAP.    III.]  CONSIDERATION. PRICE.  19 

to  pay  for  the  work  and  labor  done  upon  it,  by  one  who  has  entered 
without  his  consent,  or  any  color  of  right,  and  held  possession 
against  him.  Hence  a  promise  thus  to  pay  is  without  consider- 
ation and  void.i  So  a  contract  for  the  sale  of  land  will  not  be 
enforced,  where  it  has  been  lost,  without  proof  of  the  identity  of 
the  land  claimed  and  "that  referred  to,  and  of  the  amount  and  pay- 
ment of  the  consideration.^  So  a  promise  to  let,  void  because 
made  by  a  married  woman,  is  no  consideration  for  a  promise  to 
hire.^  So  where  two  parties  to  an  instrument  enter  into  mutual 
covenants,  which  are  interchangeably  considerations  for  each  other; 
if  either  party  neglects  or  refuses  to  bind  himself,  the  instrument 
is  void  for  want  of  mutuality,  and  the  party  cannot  avail  himself 
of  it  as  obligatory  upon  the  other,  and  cannot  by  any  subsequent 
act  of  his  own,  without  the  assent  of  the  other,  render  it  obligatory 
upon  him.  Where  such  an  instrument  is  executed  by  one  pro- 
fessing to  be,  but  not  in  fact  being,  authorized  to  act  as  an  agent 
for  one  of  the  principal  parties  ;  no  subsequent  act  of  this  principal, 
in  the  nature  of  ratification,  can  render  the  contract  binding  upon 
the  other  party.  And  where  part  of  the  purchase-money  for  land, 
agreed  in  such  an  instrument  to  be  sold,  was  paid  to  the  supposed 
agent,  and  afterward  received  from  him  by  his  principal ;  tliis  does 
not  render  the  instrument  binding  upon  the  seller  without  his 
assent.^  So  where  the  obligor  and  obligee  in  a  bond,  condi- 
tioned for  the  conveyance  of  land,  agreed  to  rescind  the  contract, 
and,  in  pursuance  of  such  agreement,  the  obligee  gave  up  the  bond, 
and  the  obligor  the  notes  taken  for  the  price ;  held,  a  promise 
afterwards  made  by  the  obligor,  to  pay  back  a  sum  of  money  which 
had  been  paid  towards  the  land,  was  nudum  pactum.^ 

3.  The  consideration  need  not  be  a  cash  payment.  Thus  a  note 
for  the  purchase-money  is  sufficient  consideration  for  a  bond  to 
convey.^  So,  if  a  vendee  of  land  covenant  to  erect  a  brick  building 
thereon  within  a  certain  time,  this  is  a  valid  consideration  for  the 
covenant  to  sell."  So  where  the  consideration  of  an  oldigation  was 
the  sale  of  improvements  on  public  lands,  and  the  vendor,  at  the 
time  of  the  sale,  was  in  a  situation  to  avail  himself  of  the  pre-emp- 
tion acts  of  Congress  ;  held,  the  consideration  was  good  and  valid.^ 

*  Frear  v.  Hardenbergh,  5  Johns.  272.  ^  Fulke  v.  Fulke,  7  Jones,  497. 

2  Madeira  v.  Hopkins,  12  B.  Mon.  595.  ^  Wliiteside  v.  Jennin^^s,  19  Ala.  784. 

3  Andriot  v.  Lawrence,  33  Barl).  142.  "^  Brewer  v.  Bessinf^er,  25  Miss.  8G. 

*  Dodge  V.  Hopkins,  14  Wis.  630.  8  Dean  v.  Wade,  15  La.  An.  230. 


20 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 


So,  if  the  only  condition  of  a  bond  for  title  is,  that  titles 
shall  be  made  as  soon  as  a  patent  from  the  government  is  pro- 
cured ;  the  presumption  from  its  face  is,  that  the  purchase-money 
has  been  paid  ;  and  it  is  no  notice  to  an  assignee  to  the  con- 
trary.^(a)  And  it  is  not  necessary,  to  constitute  a  valid  consid- 
eration for  a  contract  to  sell  land,  that  the  purchaser  should 
expressly  stipulate  to  buy  or  pay  for  it.(S) 

1  Burns  v.  Taylor,  23  Ala.  255. 


(o)  111  a  suit  on  a  note,  given  for  part  of 
the  purchase-nioncy  of  land,  and  indorsed 
over  to  the  plaintiff'  by  the  grantor,  the 
judgment  was  for  the  defendant,  on  the 
ground  that  the  grantor's  vvite  had  not 
signed  the  conveyance.  The  grantor,  and 
maker  of  the  note,  then  agreed,  that  the 
latter  should  pay  this  and  one  other  of 
three  notes  given  by  him  in  part  payment. 
Held,  the  imperfect  convej'ance  was  yet 
a  sufficient  consideration  to  support  this 
agreement.  Friermood  v.  Pierce,  17.1nd. 
461. 

The  plaintiff"  agreed  with  the  defend- 
ant, to  sell  to  him  by  the  22d  of  January 
then  next  the  lease  of  a  tarni  for  £500, 
and  the  defendant  agreed  to  purchase  the 
same,  subject  to  his  being  approved  of  as  a 
tenant  by  Lord  S.,  and  also  to  pay  down  to 
the  plaintiff'£500  as  a  deposit,  and  to  com- 
plete the  purchase  by  the  time  named.  The 
defendant,  being  unable  to  pay  the  £500 
at  the  making  of  the  agreement,  in  consid- 
eration that  the  plaintiff,  at  the  request  of 
the  defendant,  dispensed  with  the  payment, 
and  would  take  the  defendant's  I.O.U. 
therefor,  agreed  to  pay  the  £500  as  soon  as 
he  could  write  to  his  banker  at  Berwick, 
and  procure  a  remittance.  Held,  the  agree- 
ment was  founded  on  a  sufficient  consider- 
ation.   Davis  V.  Nisbett,  10  C.  B.  n.s.  752. 

The  defendant  A.,  owning  a  mortgaged 
estate,  proposed  to  the  defendant  B.,  her 
nephew,  tiiat  she  should  live  with  him,  in 
a  larger  house  than  he  then  occupied,  slie 
contributing  an  annual  sum  to  the  house- 
keeping; to  which  he  assented,  on  con- 
dition she  would  settle  the  estate,  limiting 
it  to  him  after  her  deatli.  By  a  settlement, 
made  accordingly,  he  covenanted  to  in- 
demnify her  from  the  mortgages,  except 
the  interest,  during  her  life.  At  consid- 
erable expense  he  removed  to  a  larger 
house,  which  for  some  time  they  occupied 
together,  but  afterwards  separated.  Tlie 
plaintiff,  having  agreed  to  purchase  of  her 
the  estate,  files  a  bill  against  the  defend- 
ants for  specific  performance.  Held,  there 
was  a  sufficient  consideration  to  sustain 
the  settlement  upon  B.,  and  the  biU  was 


dismissed.  Townend  v.  Toker,  Law  Rep. 
(p:ng.)  Kq.  Aug.  1866,  p.  445. 

Where  A.,  the  owner  of  a  house,  and 
about  an  acre  of  land,  worth  not  more 
than  $75,  agreed  to  convey  them  to  his 
brother,  B.,  on  condition  that  he  would 
move  from  another  county,  and  live  with 
him,  and  thereupon  obtained  from  him  an 
undertaking,  b}^  which  the  division  fences 
between  such  land  and  A.'s  farm,  sur- 
rounding it  on  three  sides,  were  to  be  per- 
petually maintained,  which  agreement 
was  scrupulously  maintained  for  more 
than  twenty  years  ;  and,  upon  the  strength 
of  this  promise,  B.  made  valuable  im- 
provements on  the  premises :  held,  the 
consideration  was  sufficient  to  support  a 
bill  for  specific  performance.  Williston  v, 
Williston,  41  Barb.  685. 

[h]  With  regard  to  the  consideration  of 
a  contract  connected  with  the  sale  and 
purchase  of  land,  it  has  been  lately  held, 
in  Pennsylvania,  that  the  promise  of  a 
vendor  to  indemnify  the  vendee  for  his 
improvements,  if  the  title  warranted  fails, 
is  founded  on  sufficient  consideration,  and 
assumpsit  lies  upon  it.  The  Court  say  : 
"As  things  turned  out,  neither  of  the  par- 
ties received  any  benefit  from  the  im- 
provements ;  but  that  was  not  the  plain- 
tiff's fault.  To  make  a  promise  binding 
in  law,  it  is  not  necessary  that  the  prom- 
isor should  derive  any  advantage  from  it. 
It  is  enough  that  the  promisee  has  en- 
countered trouble,  assumed  a  burden,  or 
suffered  a  loss.  Here  was  a  person  mak- 
ing a  purchase  of  land.  He  had  so  little 
liiitli  in  the  title  that  he  would  neither 
pay  the  purchase-money  nor  make  im- 
provements which  were  necessary  to  its 
profitable  use  without  some  guaranty 
against  tlie  ultimate  loss  of  his  whole  out- 
lay. But  he  had  confidence  in  his  ven- 
dor, and  was  willing  to  accept  his  personal 
warranty  in  place  of  a  good  title.  It  does 
not  seem  to  us  that  it  makes  any  differ- 
ence whether  the  contract  concerning  the 
improvements  was  made  before  or  after 
the  date  of  the  deed.  The  deed  did  not 
alter  the  situation  of  the  parties,  or  make 


CHAP.    III.] 


CONSIDERATION. 


PRICE. 


21 


4.  In  this  connection  may  be  considered  the  subject  of  a  pur- 


any  change  in  the  title,  lor  the  grantor 
had  no  title  to  convey.  The  conditions 
or  terms  of  a  .<ale,  and  the  qnantity  of 
estate  t;ranted,  are  to  be  looked  for  in  the 
final  deed  of  conveyance,  and  not  in  any 
articles  of  agreement  which  may  have 
preceded  it.  But  to  us  it  appears  that  the 
contract  on  wliicli  this  suit  i.s  founded  has 
no  such  relation  to  the  deed  referred  to. 
It  does  not  concern  the  sale  or  the  transfer 
of  the  title.  It  is  a  promise  to  do  another 
thing.  The  consideration  is  wholly  dis- 
tinct, and  the  subject  of  the  contract  is  a 
different  thing."  llichardson  v.  Gosser,  26 
Penn.  335,  336. 

Agreement,  that  one  party  will  sell 
lands  to  another,  and  convey  them  on  a 
certain  day.  The  purchase-money  was 
paid  down,  the  vendor  agreeing,  at  the 
end  of  a  year,  upon  thirty  days'  notice,  to 
refund  it  with  interest.  The  agreement 
being  signed  by  both  parties  ;  held,  there 
was  sufficient  consideration,  though  the 
purchaser  did  not  expressly  contract  to 
do  any  thing ;  tliat  the  purchase  and  pay- 
ment were  a  sufficient  consideration  for 
the  seller's  engagement  to  convey  or  re- 
pay the  money ;  that  the  agreement  was 
substantially  an  alternative  one,  either  to 
sell  ami  purcliase  land,  or  to  borrow  and 
lend  money,  at  the  election  of  the  pur- 
chaser at  the  end  of  the  year,  and,  upon 
giving  notice,  he  might  recover  back  the 
money ;  and  that,  if  he  should  receive  a 
conveyance  befoi-e  calling  for  the  money, 
lie  could  rtot  afterwards  recover  the  mo- 
ney, without  reconveying  the  land.  Eno 
V.  Woodworth,  4  Comst.  249. 

The  plaintiff,  by  a  contract  inter  partes, 
and  signed  by  both,  agreed  to  sell  to  the 
defendant  his  farm  in  Florence,  Oneida 
County,  for  51,700  dollars  in  cash,  and 
240  acres  of  land  owned  by  the  defendant, 
in  Lake  County,  Illinois,  upon  certain 
terms  and  with  certain  reservations.  A 
penalty  of  $500  was  provided  for  breach 
of  the  contract.  On  the  day  appointed, 
the  plaintiff  tendered  a  deed,  and  de- 
manded the  money  and  a  conveyance  of 
the  land ;  but  the  defendant  did  not  thus 
pay  or  convey,  although  the  plaintiff  was 
ready  to  perform  on  his  part.  Held,  in 
an  action  for  the  price,  and  also  for  specific 
performance,  that,  although  the  defendant 
did  not  expressly  agree  to  buy  or  pay  for 
the  farm,  such  agreement  was  to  be  im- 
plied ;  that  the  measure  of  damages  was 
the  price  to  be  paid ;  that  the  S500  was 
not  designed  as  stipulated  damages,  but 
as  a  penalty  to  enforce  performance,  and 
therefore  was  no  bar  to  this  suit ;  and  that 
the  contract  was  sufficiently  definite  to  be 


specifically  enforced.  Richards  v.  Edick, 
17  Barb.  260. 

A  bond  was  made,  in  Alabama,  by  one 
member  of  a  firm  to  anotlier,  expressing 
no  consideration,  and  conditioned  to  give 
a  quitclaim  deed  of  certain  land  in  two 
years.  The  same  day,  the  i)arties  entered 
into  an  agreement,  by  which  the  obligee 
covenanted  to  use  his  best  endeavors  for 
two  years  to  collect  the  partnership  debts, 
and  pay  their  liabilities.  Held,  a  consid- 
eration for  the  bond  was  inii)lied,  and,  as 
neither  instrument  referred  to  the  other, 
and  the  two  related  to  dirterent  subjects, 
they  could  not  be  treated  as  parts  of  one 
transaction,  nor  the  covenant  of  tlie  obligee 
treated  as  the  consideration  of  the  bond. 
Holman  v.  Crane,  16  Ala.  570. 

A  declaration  alleged  a  written  agree- 
ment, that  the  plaintiff  would  let,  and  one 
A.  would  take,  a  house,  at  an  annual  rent, 
and  that  the  defendant  thereby  agreed  to 
see  the  rent  paid  by  A.  or  pay  it  for  him  ; 
that  the  plaintifl'  let  the  house,  and  A.  be- 
came tenant,  on  the  terms  of  the  agree- 
ment; and  that  neither  A.  nor  the  de- 
fendant paid  the  rent.  Held,  on  demurrer, 
the  consideration  for  the  defendant's  prom- 
ise was  the  letting  of  the  house,  and  this 
sufficiently  appeared  in  the  agreement. 
Caballero  v.  iSlater,  25  Eng.  Law  &  Eq. 
285. 

The  defendant  agreed  to  give,  towards 
building  a  chui'ch,  a  lease  of  a  certain 
house  for  three  years,  which  at  present 
rent  is  8516.  Held,  that  the  agreement 
written  on  a  subscription  paper  was  to  be 
taken  in  connection  with  the  heading  and 
other  signatures,  which  showed  a  consid- 
eration. Trustees  v.  Robinson,  21  N.Y. 
(7  Smith),  234. 

Specific  performance  may  be  decreed 
in  favor  of  a  purchaser,  though  the  whole 
consideration  be  not  stated  in  the  contract, 
if  he  is  willing  to  pay  the  whole.  I'ark 
V.  Johnson,  Mass.  S.J.C.;  Law  Reg.  Jan. 
1863,  p.  180. 

Where,  by  a  contract  under  seal,  exe- 
cuted by  the  plaintiff"  and  the  defendant, 
the  latter  covenants  that,  ujjon  payment  of 
$1,700  in  the  manner  and  at  the  times 
therein  set  forth,  he  will  convey  to  the 
lilaintiff  certain  real  estate,  excepting  the 
wood  and  timber  upon  a  specified  part; 
and  the  plaintifi'  covenants  that,  as  part 
payment,  he  will  cut  and  carry  the  wood 
lor  the  defendant  to  places  and  at  prices 
fixed  by  the  contract :  there  is  an  implied 
covenant  to  permit  the  plaintifl"  thus  to 
cut  and  carry  the  wood.  \i,  during  the 
time  fixed  for  the  cutting  and  carrying  of 
the  wood,  the  defendant  sells  it,  this  will 


22 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 


chaser's  liability  to  pay  the  agreed  price,  and  the  defences  some- 
times made  against  actions  therefor,  (a) 

5.  The  terms  of  the  contract  may  be  such,  as  to  render 
this  liability  alternative  or  contingent ;  or  to  give  a  right 
of   election    to    the   vendor    alone,   not    to    the    vendee  ;  (K)    or 


be  a  breach  of  the  implied  covenant,  and 
give  tlie  plaintiff  an  immediate  right  of 
action.     French  v.  Bent,  43  N.H.  448. 

(a)  Where  by  an  assignment  of  a  ven- 
dee's interest  the  assignee  has  agreed  to 
assume  a  claim  of  the  heirs  of  the  vendor, 
it  is  to  be  presumed  that  the  claim  was 
the  purchase-money  unpaid,  if  it  does  not 
appear  that  the  vendee  was  otherwise  in- 
debted to  the  vendor  or  his  heirs ;  and 
upon  such  promise  the  heirs  may  main- 
tain an  action.  Adams  v.  Wadhams,  40 
Barb.  225. 

Tiie  question  sometimes  arises,  wheth- 
er the  sum  stipulated  to  be  paid  by  a 
purchaser  is  to  be  viewed  as  a  pendty 
for  violation  of  the  contract,  or  as  part 
of  the  price,  or  as  liquidated  damac/es. 
Thus,  where  a  pm-chaser  covenanted,  in 
consideration  of  having  the  property  con- 
veyed to  him  for  a  certain  sum,  that  he 
would,  by  a  certain  day,  erect  two  brick 
houses  of  specified  dimensions,  or,  in  de- 
fault thereof,  pay  to  the  grantor,  on 
demand,  the  sum  of  §4,000  ;  held,  the  sum 
specified  was  not  a  penalty,  but  part  of 
the  price ;  and,  on  tailure  to  erect  the 
houses,  the  covenantee  was  entitled  to 
recover  it  as  liquidated  damages,  not 
merely  the  actual  damages  sustained. 
Pearson  v.  Williams,  26  Wend.  630. 

So  where  A.,  in  consideration  of  f500, 
paid  in  full,  for  fifty  acres  of  land,  cove- 
nanted to  convey  the  land  to  B.,  by  a 
good  and  sufficient  deed,  on  or  before  a 
certain  day,  or,  in  lieu  thereof,  to  pay  him 
$800 ;  held,  B.  was  entitled  to  recover 
that  sum  on  a  breach  of  the  covenant, 
with  interest;  the  same  being  in  the  na- 
ture of  liquidated  damages,  and  not  a 
penalty.     Slosson  v.  Beadle,  7  Johns.  72. 

But  a  purchaser  of  land,  who  has  con- 
tracted to  pay  a  specific  sum  as  the  price, 
cannot  be  relieved  from  the  payment  by 
the  tender  of  a  less  stun,  also  agreed  upon 
in  the  contract  as  stipulated  damages,  to 
be  paid  in  case  of  non-performance  on  his 
part.     Ayres  v.  Pease,  12  Wend.  393. 

A  declaration,  that  the  defendant  is  in- 
debted in  the  sum  of,  &c.,  for  land  called, 
&c.,  containing,  &c.,  before  that  time  bar- 
gained and  sold,  delivered  and  conveyed, 
by  deed  bearing  date,  &c.,  by  the  plaintiff 
to  the  defendant,  and  being  so  indebted, 
in  consideration  thereof,  undertook  and 
promised,    &c. ;   is   sufficient  to  maintain 


an    action    for    unpaid   purchase-money. 
Wolfe  V.  Hauver,  1  Gill,  84. 

Tlie  conveyance  of  land,  and  delivery  of 
possession  in  pursuance  of  a  deed,  or,  in 
other  words,  tlie  execution  of  a  contract 
on  the  part  of  the  plaintiff,  as  vendor  of 
land,  raises  a  duty  on  the  part  of  tiie  ven- 
dee to  pay  tlie  consideration -money, 
whicli  will  sustain  the  judgment  of  the 
Court.     Ibid. 

The  law  equally  implies  a  promise  to 
pay  for  land  sold  and  delivered,  as  it  does 
in  the  case  of  the  sale  of  goods,  wares,  and 
merchandise.     Ibid. 

The  price  becomes  due  upon  delivery, 
though  the  purchaser  was  to  have  the 
right  of  applying  to  the  payment  moneys 
expected  from  another  source,  and  not 
actually  received.  Elder  v.  Hood,  38  111. 
533. 

{h)  A  purchaser  of  land  paid  part  of 
the  price,  and  gave  notes  for  the  balance, 
payable  respectively  in  one,  two,  three, 
and  four  years  ;  the  vendor  agreeing,  upon 
payment  of  the  notes  as  they  should  fall 
due,  to  convey  the  land.  But,  if  the  pur- 
chaser should  refuse  or  neglect,  upon  re- 
quest, to  pay  either  of  the  notes  at  ma- 
turity, the  obligation  to  convey  should 
become  void,  and  all  previous  payments 
be  retained  as  liquidated  damages  for 
breach  of  the  contract.  Held,  the  stipu- 
lation last  named  did  not  excuse  the  pur- 
chaser from  payment  of  the  notes,  if 
claimed  by  the  vendor.  Cartwright  v. 
Gardner,  5  Cush.  273. 

The  price  to  be  paid  is  sometimes  left 
to  arbilration.  But  specific  performance 
cannot  be  decreed,  of  an  agreement  to  sell 
at  a  price  to  be  fixed  by  arbitrators  (already 
appointed  to  settle  other  matters  in  dispute 
between  the  parties),  where  the  defend- 
ant (tlie  vendor)  had  refused  to  execute 
the  arbitration  bond,  and  it  was  therefore 
uncertain  tliat  any  award  would  ever  be 
made.     Wilks  v.  Davis,  3  Mer.  507. 

Nor  of  an  agreement  to  sell,  at  a  price 
to  be  settled  by  arbitrators  named  by  the 
parties,  if  no  award  has  been  made.  But, 
if  the  parties  are  agreed  as  to  a  valuation, 
but  have  not  appointed  any  persons  to 
make  it,  the  Court  will  itself  interfere,  so 
as  to  ascertain  the  value,  and  direct  spe- 
cific performance.  Daly  v.  Duggan,  1  Ir. 
Eq.  Hep.  311. 

The  Court  will  not  entertain  a  bill  for 


CHAP.   III.] 


CONSIDERATION. 


PRICE. 


23 


such    as   to   give   to   the   vendee   alone   a   similar    right   of  elec- 
tion, (a) 

6.  It  has  been  held,  that  parol  evidence  is  admissible  that  an 
additional  sum  was  to  be  paid  for  land  conveyed,  upon  a  certain 
contingency  which  has  occurred.^ 

7.  A  contract  to  purchase  a  certain  tract  of  land  described  by 
boundaries,  supposed  to  contain  242  acres,  at  so  much  per  acre,  is 
not  a  contract  to  pay  for  .242  acres  at  that  rate,  but  for  so  many 
acres  as  there  may  be  in  the  tract.^ 

8.  Where,  by  the  terms  of  a  contract,  dated  December  24,  for 
the  sale  and  purchase  of  land,  the  payments  were  to  be  made  as 
follows  :  "  1100  on  the  date  hereof,  |100  by  the  1st  of  ^fay  next, 
and  the  residue  to  be  paid  in  annual  payments  of  $100  each,  with 
interest  on  the  whole  sums  unpaid  from  the  date  hereof ;  "  held, 


1  Nickerson   v.   Saunders,    36   Maine,  2  Ayres  v.  Hayes,  13  Mis.  252. 


413. 

specific  performance  of  an  agreement  to 
refer  to  arbitration,  nor  substitute  the 
master  for  the  arbitrators.  Agar  v.  Mac- 
klew,  2  Sim.  &  Stu.  418. 

But  where  there  is  a  contract  to  sell  <it 
a  valuation  by  persons  named,  the  Court 
will  compel  the  vendor  to  permit  the  valu- 
ation.    Morse  v.  Merest,  6  Madd.  26. 

The  time  of  valuation  is  of  the  essence 
of  the  contract;  but  the  defendant  (ven- 
dor) cannot  take  advantage  of  it,  if  he 
improperly  occasion  the  delay.  Morse 
V.  Merest,  6  Madd.  26. 

Where,  in  an  agreement  for  the  sale  of 
land,  it  is  stipulated  that  the  price  shall 
be  fixed  by  an  arbitrator,  and  the  agree- 
ment be  made  a  rule  of  court;  the  award 
being  published,  and  the  agreement  made 
a  rule  of  court,  the  vendor  cannot  have 
an  attachment  for  the  price.  His  only 
remedy  is  by  action  on  the  articles.  In  re 
Lee  and  Hemingway,  3  Nev.  &  Man.  860. 

Contract  for  sale,  at  a  price  to  be  fixed 
by  arbitrators  within  a  certain  time,  or,  if 
they  should  not  agree  to  make  their  award 
within  the  time,  by  an  umpire,  also  within 
a  limited  time.  Hold,  as  the  contract  re- 
quired delivery  of  the  award  in  writing  to 
each  party ;  though  the  consequential 
acts,  execution  of  conveyances,  &c.,  might 
be  done  b}'  representatives  ;  the  contract, 
in  refei'ence  to  the  terms  to  be  fixed  by 
the  award,  was  personal  to  the  parties  ; 
and,  one  of  them  having  died  before  the 
award,  specific  performance  was  refused. 
Blundell  v.  Brettargh,  17  Ves.  232. 

(a)  On  the  purchase  of  certain  real 
estate,  part  of  the  purchase-money  was 


paid,  and  promissory  notes,  payable  at 
specified  times  with  interest,  were  given 
for  the  residue.  The  vendor  gave  the 
vendee  a  title-bond,  the  condition  of  which 
stated,  that  it  was  agreed  between  the 
parties,  that,  if  said  notes  and  interest  were 
not  paid  at  maturity,  the  bond  should  be 
void,  and  the  money  paid  forfeited  to  the 
vendor;  or  if,  on  payment,  as  aforesaid, 
the  vendor  or  his  assigns  should  make  a 
warranty-deed  in  fee-simple  to  the  vendee 
or  his  assigns,  then  the  bond  to  be  void. 
Held,  the  vendee  was  not  bound  to  pay 
the  notes,  but  might  abandon  the  contract, 
and  forfeit  the  money  paid.  Peterson  v. 
Dickey,  8  Blackf  427. 

An  agreement  to  pay  for  real  estate 
sold  "  with  satisfactory  indorsed  notes, 
payable  at  bank,  with  interest  added,  or 
mortgage  on  the  property,"  does  not 
authorize  the  vendor  to  demand  a  mort- 
gage containing  a  power  of  sale.  Capron 
I'.  Attleborough  Bank,  11  Gray,  492. 

Where  one  contracted  to  purchase  land 
for  a  fixed  price,  "it  being  expressly 
agreed  that  the  said  payments  are  to  be 
made  in  *  *  *  axes ; "  held,  he  might 
elect  to  pay  in  monej',  and  tiic  measure 
of  damages  for  failure  to  pay  was  not  the 
profit  which  might  have  been  made  on 
the  axes,  but  the  interest  of  tlie  money. 
White  y.  Tompkins,  52  I'enn.  —  Law.  Keg. 
Aug.  1867,  p.  635. 

Where  a  purchaser  is  authorized  to 
pay  in  money  or  labor  at  his  election, 
after  tender  of  the  money  he  may  main- 
tain a  bill  for  specific  porfornuince.  Owen 
V.  Frink,  24  Cal.  171. 


24  ■  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 

the  "  residue  "  was  payable  in  annual  payments  computed  from  the 
1st  of  May,  and  not  from  the  date  of  the  contract.^ 

9.  The  plaintiff  sold  land  to  A.  by  written  agreement,  and  A. 
assigned  his  interest  to  the  defendant,  who  took  possession.  The 
plaintiff  and  defendant  subsequently  executed  an  agreement,  set- 
tling all  disputes  about  quantity  and  boundaries,  the  plaintiff  to 
pay  $20,  and  the  agreement  not  to  affect  claims  between  the  plain- 
tiff and  defendant,  or  A.  and  the  defendant.  In  this  action  for  the 
balance  of  the  price  the  defendant  sets  up  the  latter  agreement. 
The  plaintiff  then  offered  parol  evidence,  which  was  admitted,  that 
the  agreement  was  not  intended  to  release  the  purchase-money. 
Held,  such  was  not  its  legal  effect,  and  therefore  the  admission  of 
the  parol  evidence  was  no  ground  for  reversing  the  judgment.^ 

10.  Where  the  price  of  land  is  to  be  paid  otherwise  than  in 
money,  questions  may  arise  as  to  the  respective  rights  and  duties 
of  the  parties,  in  regard  to  the  sufficiency  of  the  proposed  security. 
It  is  held,  that  a  vendor  is  not  bound  to  receive  indorsed  notes, 
unless  they  are  not  only  good,  but  there  is  no  reasonable  cause  to 
reject  them.  Hence  upon  a  declaration,  that  by  the  contract  the 
purchaser  was  to  execute  his  notes  for  the  purchase-money,  with 
approved  securities,  a  plea,  "  that  the  securities  offered  by  the 
defendant  were  good  and  sufficient  to  secure  the  purchase-money 
of  said  lands,"  was  held  bad,  on  demurrer,  as  it  did  not  also  aver, 
"  that  there  was  no  reasonable  cause  for  rejecting  them."  ^ 

11.  In  this  connection  may  be  briefly  noticed  the  important 
questions,  as  to  the  liability  of  the  respective  parties,  with  reference 
to  the  price,  so  far  as  that  of  each  depends  upon  a  performance  by 
the  other.    The  subject  will  be  more  fully  considered  hereafter. (a) 

12.  In  general,  the  plaintiff  who  seeks  for  the  specific  perform- 
ance of  an  agreement  must  sliow,  that  he  has  performed,  or  offered 
to  perform,  on  his  part,  the  acts  which  formed  the  consideration  of 
the  alleged  undertaking  on  the  part  of  the  defendant.*  Thus,  a 
vendor  is  not  bound  to  convey  or  part  with  his  title,  until  the  pur- 
chase-money is  paid.^  So,  if  by  agreement  the  making  of  the  title 
and  payment  of  the  purchase-money  are  to  be  concurrent  acts, 
neither  party  can  sustain  a  suit  on  the  agreement,  without  having 

1  Judd  V.  Ensign,  6  Barb.  258.  ^  Ishmael  v.  Parker,  1.3  111.  324  ;  Man- 

2  McMahan  v.  Davis,  19  Penn.  354.  ley   v.    Cremonini,    11    Eng.  Law  &  Eq. 

3  Adams  v.  McMillan,  7  Port.  73.  573  ;  Tucker  v.  Woods,  12  Johns.  190. 
*  Colson    V.    Thompson,    2   Wheaton, 

836,  341. 

(a)  See  chapters  12  and  seq. ;  chapters  29,  30. 


CHAP.    III.] 


CONSIDERATION.  —  PRICE. 


25 


first  performed  or  ofifercd  to  i)crrorin  his  part  of  it.^  So,  where  a 
vendor  has  no  title,  the  contract  is  a  nullity,  and  the  vendee  may 
recover  back  the  purchase-money  paid.^  So,  upon  a  bond  to  con- 
vey, on  payment  of  the  imrchase-money,  no  action  lies  at  law  or  in 
equity,  without  payment  or  tender  thereof.^  But,  uiton  tendering 
a  deed,  and  offering  to  perform  his  agreement,  the  vendor  may 
recover  the  purchase-money  at  law.'^(a) 


1  Shirley  v.  Shirley,  7  Blackf.  452. 

2  Pipkiu  V.  James,  1  Humph.  325. 

(n)  Sale  ofa  tract  of  land,  containing  181 
acres,  at  $45  per  acre,  with  an  agreement 
to  deduct  the  price  of  such  part  of  which 
peaceable  possession  could  not  be  given. 
Subsequently,  a  deed  was  given,  without 
covenants,  describing  the  land  by  metes 
and  bounds,  and  as  containing  181  acres, 
more  or  less,  and  possession  taken.  Held, 
the  vendee  was  bound  for  the  whole  price, 
though  he  should  give  up  part  of  the  land. 
Smith  V.  Chaney,  4  Md.  Cli.  246. 

Unsealed  agreement,  by  which  A.,  in 
consideration  of  §75  paid  by  B.,  and  $15 
to  be  paid  by  C,  engaged  to  convey  cer- 
tain land  on  a  certain  day  to  B.  C.  not 
having  paid  the  $15 ;  held,  A.  was  not 
bound  to  convey.  Gilman  v.  Schwartz, 
36  Maine,  541. 

Land  was  sold  at  auction  to  the  defend- 
ant, who  subscribed  the  terms  of  sale ; 
which  were,  that  a  certain  part  of  the 
purchase-money  should  be  paid  within 
seventy-five  hours  ;  that  a  deed  should  be 
given  by  the  vendor,  \cith  ivarranlij  of  title 
except  as  to  the  quit-rents  in  such  lots  as 
should  be  designated;  that  the  purchaser 
should  execute  a  bond  and  mortgage  for 
the  residue  of  the  pm-chase-money ;  and 
that  the  deed,  bond,  and  mortgage  should 
bear  date  on  the  day  of  the  sale.  At  the  time 
of  sale  the  premises  were  mortgaged,  and 
the  mortgage  had  been  previously  regis- 
tered, and  was  still  unsatisfied.  In  an 
action  of  assumpsit  by  the  vendor,  against 
the  purchaser,  it  was  held,  that  giving  the 
deed,  bond  and  mortgage  were  to  be  sim- 
ultaneous acts ;  that,  as  the  plaintitt'  was 
not  in  a  situation  to  convey  a  title,  the 
defendant  was  not  bound  to  perform  the 
agreement  on  his  part ;  that  the  meaning 
of  the  agreement  was  not  merely  that  the 
plaintiff' should  give  a  deed  with  warranty, 
but  that  he  was  able  to  convey  an  inde- 
feasible title  ;  and  that  although  tlie  mort- 
gage was  registered,  and  the  defendant 
therefore  had  notice  of  it,  yet  that  circum- 
stance was  immaterial ;  for,  by  the  terms 
of  sale,  the  quit-rents  were  the  only  in- 
cumbrance on  the  land.     Held,  also,  that 


^  Browning  i'.  Clymcr,  1  Cart.  579. 
*  Richards  v.  Edick,  17  Barb.  260. 

if  the  vendee  has,  according  to  the  terms 
of  the  sale,  paid  part  of  the  consideration- 
money,  and  the  vendor  is  imahle  to  con- 
vey a  good  title,  the  vendee  nmy  disalKrm 
the  contract,  and  recover  back  the  money. 
Judson  r.  Wass,  11  Johns.  525. 

In  August,  1846,  a  father  executed  a 
bond  to  his  son,  to  convey  to  him  certain 
real  and  personal  property,  i)rovided  the 
son,  living  in  another  State,  sliould  return 
with  his  family  in  the  spring  or  summer 
of  1847,  purposely  to  provide  for  and 
maintain  for  life  the  father,  his  wife  and 
daughter,  and  give  bond  therefor,  and  to 
pay  the  father's  debts.  Tlie  son  did  not 
return  in  1847  ;  and,  in  the  fall  of  that 
year,  the  father,  staniling  in  need,  con- 
veyed all  his  property  to  the  plaintiffs, 
they  giving  bond  to  provide  lor  him  and 
his  famil}',  wiiile  they  should  live  alone. 
The  plaintiffs  had  notice  of  the  bond  to 
the  son,  and  it  was  understood  that  the 
property  was  to  be  surrendered  to  him  on 
his  return.  In  the  fall  of  184'J,  tlie  son 
returned  with  his  family ;  and,  early  in 
1850,  the  father  notified  the  plaintiffs, 
offered  to  siu'render  their  bond,  and  de- 
manded a  transfer  to  the  son.  Two  days 
after,  the  son  executed  the  bond  agreed 
upon,  and  the  father  conveyed  the  land  to 
him.  He  entered,  and  the  plaintiff's  bring 
ejectment.  Held,  the  plaintiffs  had  ac- 
quired the  legal  title,  and,  in  order  to 
obtain  it,  the  son  must  show  a  compliance 
with  his  bond  ;  that,  if  the  plaintiffs  had 
performed  its  conditions,  in  whole  or  in 
jiart,  for  him,  on  the  faith  of  their  title, 
they  were  not  bound  to  convey,  till  he 
compensated  them ;  not  including,  how- 
ever, any  advances  on  accounts,  except 
those  made  on  the  strength  of  the  title. 
Adams  v.  Smith,  I'J  I'enn.  182. 

In  a  contract  for  the  sale  of  lands,  it 
was  agreed,  that  the  vendor  should  redeem 
a  part  which  had  been  sold  for  taxes  ; 
that,  if  the  vendee  should  redeem,  the 
sum  paid  by  him  should  be  allowed  on 
the  contract ;  and  that,  if  the  land  could 
not  be  redeemed,  a  deduction  should  be 


26  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 

13.  Althongh,  in  general,  the  purchaser  shall  not  recover  pos- 
session till  he  has  paid  or  tendered  the  purchase-money,  it  has 
been  questioned  whether  this  must  be  done  previous  to  the  com- 
mencement of  an  action ;  and  it  is  not  requisite,  if  the  vendor  be 
the  executor  of  the  vendee,  and  retain  effects  equivalent  to  the 
purchase-money.^  So  the  above  rule  may  be  qualified  by  the  spe- 
cial terms  of  the  agreement.  Thus  a  bond  for  title  was  given, 
reciting,  that  in  consideration  of  a  certain  sum,  secured  by  note 
payable  in  twelve  months,  the  obligor  had  sold  certain  land,  and 
conditioned  to  give  a  good  warranty  title-deed  "  when  the  purchase- 
money  should  be  paid,  or  when  a  patent  for  the  land  should  be 
obtained  from  the  government."  In  an  action  upon  the  note,  held, 
a  conveyance  was  not  a  condition  precedent  to  payment  of  the 
price.^  So  an  agreement  between  A.  and  B.,  that  B.  shall  pay  A. 
a  sum  of  money  for  his  land  on  a  particular  day,  amounts  to  a 
covenant  by  A.  to  convey ;  the  term  agreed  being  the  word  of  both 
parties.  But  it  is  an  independent  covenant,  and  A.  may  bring  an 
action  for  the  money  before  any  conveyance.^  So,  where  the  agree- 
ment is  to  convey  in  fee-simple,  a  judgment  against  the  vendor 
will  not,  at  law,  authorize  the  vendee  to  rescind  ;  inasmuch  as  a 
conveyance  without  covenants  would  satisfy  such  an  agreement.* 
So  the  defendant  gave  a  bond  for  a  quitclaim  deed  of  land  on  a 
certain  day,  on  payment  of  a  certain  price.  At  the  day,  the  obligee 
offered  to  pay  the  money,  having  it  within  his  reach  and  control, 
though  not  actually  in  hand,  but  made  no  tender.  The  obligor 
insisted  that  the  money  should  be  paid  before  giving  the  deed,  and 
refused  to  convey  simultaneously  with  the  payment.  Held,  the 
obligee  was  entitled  in  equity  to  a  decree  for  a  quitclaim  deed  free 
from  incumbrances  created  by  the  obligor  since  the  date  of  the 
bond.5  gQ^  although  where  the  complainant,  who  seeks  specific 
performance  of  an  agreement  for  the  sale  of  land,  has  not  per- 

1  Smith  V.  Patton,  1  Serg.  &  E.  80.  <  Fuller  v.  Hubbard,  6  Conn.  13. 

2  Perry  v.  Rice,  10  Tex.  3G7.  ^  Parker  v.  Perkins,  8  Cush.  318. 

3  Pordage  v.  Cole,  1  Saund.  820. 

made  from  the  contract.     Held,  this  cov-  Also,  that  the  vendee,  having  voluntarily 

enant  was  for  the  benefit  of  the  vendee,  paid  the  purchase-money  for  the  whole  of 

for  the  purpose  of  removing  an  mcum-  the  land,  and  demanded  and  received  a 

brance,  and  looked  solely  to  the  title  which  deed  for  tlie  whole,  could  not  maintain  an 

he  was  to  receive  ;   that  the  vendor  was  action  upon  the  contract,  to  recover  the 

bound  to   redeem,  and,  the   title  having  value  of  the  part  sold  for  taxes,  his  only 

been   lost   by  his  neglect,  the  purcliaser  remedy  being  upon  the  covenants  in  his 

was  not  bound  to  pay  for  that  part  of  the  deed.     Bull  v.  Willard,  9  Barb.  641. 
land,   nor   to   take   a  deed  including  it. 


CHAP.    Ill,] 


CONSIDERATION, 


PRICE, 


27 


formed  his  part  of  the  contract,  the  Court  will  not  decree  specific 
performance,  especially  if  any  injury  has  thereby  resulted  to  the 
defendant ;  yet,  the  defendant  having  taken  possession,  paid  part 
of  the  purchase-money,  and  executed  the  agreement  in  part,  the 
Court  will  consider  him  as  having  waived  his  objections,  and  will 
decree  execution.  It  will,  however,  extend  the  time  of  payment, 
vary  the  security  to  be  given,  and  regulate  the  payment  of  interest, 
according  to  the  justice  of  the  case,  under  the  circumstances, ^(a) 

14.  Upon  the  question,  what  constitutes  a  'performance  by  one 
party,  enabling  him  to  enforce  an  execution  by  the  other,  the  gen- 
eral principle  is,  that  it  must  be  a  substantial  compliance  with  the 
contract,  as  reasonably  construed  with  reference  to  the  rights  and 
interests  of  both  parties.  Thus,  where  one  of  the  considerations 
of  an  agreement  to  convey  land  was,  that  the  purchaser  should 
reside  thereon,  and  he  did  reside  thereon  two  years,  and  then  left ; 
held,  this  was  a  sufficient  performance  on  his  part.^     So  an  agree- 

1  Eamsay  v.  Brailsford,  2  Desaus.  583.         2  Sliaw  v.  Liverraore,  2  Greene,  838. 


(a)  The  defendant  covenanted  to  con- 
vey to  the  plaintiti',  on  condition  that  tlie 
plaintiff  paid  him  $500  by  instahnents. 
The  plaintiff  entered,  and  paid  the  first, 
and  offered  to  pay  the  second,  if  the  de- 
fendant, would  give  him  security  against 
a  mortgage  on  the  premises,  existing  at 
the  time  of  the  purchase.  The  defendant 
refused  the  security,  but  offered  to  receive 
the  money,  and  perform  the  contract. 
The  plaintiff  refused  to  pay  any  more 
money,  and  the  defendant  brought  an 
ejectment,  and  ejected  him.  The  plain- 
tiff then  brought  this  action  to  recover 
back  the  money.  Held,  the  plaintiff  had 
no  right  to  rescind,  and  recover  back  the 
money  ;  there  being  no  fraud  on  the  part 
of  the  defendant,  and  the  plaintiff  not 
having  entitled  himself  to  demand  a  deed. 
EUis  V.  Hoskins,  14  Johns.  363. 

Marriage  articles  recited,  that  A.,  the 
father  of  the  intended  husband,  had  agreed, 
in  case  the  maiTiage  should  take  effect, 
to  pay  £200,  and  also  to  settle  the  lands 
of  T.,  as  thereinafter  mentioned  ;  and  that 
B.,  the  father  of  the  intended  wife,  who 
was  an  infant,  had  agreed  to  convey  the 
lands  of  G.,  as  thereinafter  mentioned, 
and  also  to  pay  to  the  husband  £100  upon 
the  marriage.  It.  was  then  covenanted 
by  A.,  that  in  case  the  marriage  shoulel 
take  effect,  and  B.  should,  as  soon  as  the 
intended  wife  came  of  age,  settle  the  lands 
of  G.  to  the  uses  thereinafter  expressed, 
he.  A.,  would  settle  the  lands  of  T.  to  his 
own  use  until  the  marriage,  and,  from  and 


after  the  marriage,  to  his  own  use  for  life, 
with  remainder  upon  certain  trusts  for 
the  benefit  of  the  husband  and  wife,  and 
tlie  issue  of  tlie  marriage ;  and  it  was 
covenanted  by  B.,  that  in  case  the  mar- 
riage should  take  effect,  and  A.  should 
perform  his  covenant,  he,  B.,  would  settle 
the  lands  of  G.  to  the  use  of  himself  tor 
life,  with  remainder  upon  certain  trusts 
for  the  benefit  of  the  husband  and  wife, 
and  issue  of  the  marriage.  Tiie  marriage 
took  effect,  and  the  wife  came  of  age  ;  but 
B.  failed  to  settle  the  lands  of  G.  Held, 
nevertheless,  that  A.  was  bound  to  per- 
form the  covenant  on  his  part.  Lloyd  v. 
Lloyd,  2  Myl.  &  Cra.  192. 

A.  sold  to  B.  his  equitable  estate  in  one- 
fourth  of  certain  ])remises,  subject  to  a 
mortgage  of  $1,500,  antl  authorizeil  and 
requested  the  trustee  to  convey  the  same 
to  B.  B.  agreed  to  assume  the  payment 
of  one-fourth  of  the  mortgage,  to  save  A. 
liarmless  therefrom,  and  to  pay  him  the 
sum  of  §625.  It  tiu-ned  out  that  there 
was  a  mortgage  of  .SI, 600.  Held,  the 
agreement  was  an  executed  one,  and 
nothing  further  was  necessary  to  be  done 
by  the  vendor,  to  enable  him  to  sue  for 
the  sum  so  agreed  to  be  paid  ;  that,  no 
time  being  limited,  said  sum  was  payable 
immediately,  with  interest  from  the  date 
of  the  instrument ;  and  tliat  the  variance 
in  the  amount  of  the  mortgage  did  not 
avoid  the  contract,  liogers  v.  Colt,  1 
New  Jersey,  18. 


28 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  III. 


ment  for  the  conveyance  of  land  provided,  that  the  purchaser,  in 
addition  to  the  purchase-money,  should  first  clear  the  land  of 
stones,  "  at  the  rate  of  at  least  three  acres  by  the  year,  until  the 
whole  lot  is  cleared,"  "  and  haul  the  stones  into  heaps,  or  near 
the  road  in  places  easy  of  access,"  to  be  taken  away  by  the  grantor. 
Held,  the  purchaser  was  not  bound  to  clear  the  three  acres  in  one 
parcel,  but  might  clear  to  that  amount  in  several  parcels.^  So  the 
defendant  promised  to  pay  the  plaintiff  X5,  if  he  would  provide  a 
tenant  for  certain  premises,  and  get  him  .£350  for  his  lease.  The 
plaintiff  procured  a  tenant,  with  whom  the  defendant  entered  into 
an  agreement,  and  received  £50  as  a  deposit.  The  tenant  being 
unable  to  complete  his  engagement,  the  defendant  afterwards  re- 
leased him,  but  retained  the  £50.  Held,  this  was  a  substantial 
performance  of  the  condition  on  the  part  of  the  plaintiff;  and  he 
was  entitled  to  recover  the  £5  from  the  defendant.^(a) 

15.  Where,  by  the  contract,  possession  was  to  be  delivered  be- 
fore payment,  and  was  so  delivered,  it  is  not  necessary  to  tender 
the  balance  of  the  money  before  commencing  an  ejectment.^ 

3  Bassler  v.  Niesly,  2  Serg.  &  Rawle, 


1  Farwell  v.  Eogers,  4  Cush.  460. 

2  Horford  v.  Wilson,  1  Taun.  12. 

[a)  Conveyance  of  land,  the  grantee 
paying  the  consideration  therefor,  and 
also  agreeing  in  writing,  "  for  value  re- 
ceived, to  pay  tlie  grantor  or  order  §100, 
wlien  the  grantor's  wife  shall  sign  the 
deed  ;  if  she  does  not  sign  it,  the  note  to 
be  null  and  void."  The  wife,  having  a 
riglit  of  dower,  died  without  signing. 
Held,  the  grantor  could  not  recover  the 
§100,  either  as  part  of  the  price,  or  upon 
the  written  agreement.  Pendergast  v. 
Meserve,  2  Fost.  109. 

Written  agreement,  that  the  defendant 
would  sell  a  lot  of  land  at  a  certain  price, 
and  advance  to  the  purchaser  a  certain 
sum  towards  building  a  house  of  a  cer- 
tain value,  which  the  latter  agreed  to 
build.  The  purchaser  drew  an  order  on 
the  defendant  in  favor  of  the  plaintiff, 
paval)le  when  the  drawer  should  have 
fulfilled  his  contract,  and  requesting  the 
defendant  to  charge  the  amount  thereof 
as  part  of  the  suras  to  be  advanced.  The 
defendant  accepted  the  order,  provided 
the  drawer  should  i^erform  his  part  of  the 
agreement,  not  otherwise.  The  drawer 
built  a  house,  of  less  value  than  was 
agreed.  In  an  action  on  the  acceptance, 
the  plaintiff  offered  evidence  of  a  waiver 
by  the  defendant  of  the  condition  of  the 
contract  and  acceptance.  To  show  the 
value  of  the   house,  the  defendant  pro- 


355. 

duced  receipts  from  the  drawer,  and  other 
orders  paid  by  the  defendant,  amounting 
to  more  than  the  agreed  advances.  Held, 
the  jury  were  rightly  instructed,  that  the 
action  might  be  maintained,  if  the  defend- 
ant had  waived  the  condition  of  the  con- 
tract as  to  the  value  of  the  house  ;  not 
otherwise.  Grandy  v.  Kittredge,  8  Cush. 
562. 

On  a  sale  of  land,  the  purchaser  paid 
part  of  the  price,  and  gave  notes  for  the 
balance,  taking  a  bond  for  title  "  on  the 
punctual  payment  of  the  notes  ;  "  took 
possession,  but  failed  to  pay  the  notes, 
and  the  vendor  resold  the  land.  Held,  a 
mutual  and  dependent  contract,  requiring 
performance,  or  readiness  to  perform,  by 
each  party  before  he  could  exact  perform- 
ance by  the  other ;  and  that  the  vendor 
could  not  treat  the  contract  as  at  an  end, 
without  refunding  the  money  paid.  John- 
son V.  Jackson,  27  Miss.  498. 

Sale  of  land  for  a  sum  of  money  paid 
down,  and  an  agreement  to  pay  a  further 
sum  whenever  the  Court  should  establish 
the  validity  of  patent  titles  over  tax  titles. 
The  Court  afterwards  decided  the  reve- 
nue laws,  imder  which  the  land  had  been 
sold  for  taxes,  to  be  constitutional  and 
valid.  Held,  the  purchaser  was  not  fur- 
ther liable.  Markham  v.  Stevenson,  15 
111.  209. 


CHAP.    III.]  CONSIDERATION.  —  PRICE.  29 

16.  In  general,  if  a  party  to  the  contract  disahles  himself  to 
perform  it,  the  other  party  acquires  the  same  riglits  as  in  case  of  a 
voluntary  neglect  or  refusal  on  the  part  of  the  former.  Tlius,  the 
right  of  action,  for  breach  of  a  parol  contract  of  purcliase,  accrues 
when  the  vendor  conveys  to  a  stranger.^  So  where  a  contract 
was  made,  dated  April  20,  and  executed  before  noon  of  that  day, 
to  convey  land  within  twenty  days  from  date,  and  on  jMay  9  the 
land  was  conveyed  to  another  person  ;  held,  a  breach  of  the  con- 
tract.2  So  where  one  agrees  to  convey  "  all  his  right,  title,  and 
interest,  with  full  covenants  of  warranty,"  a  conveyance  to  a  third 
person,  or  a  forfeiture  of  the  vendor's  interest  by  his  own  laches, 
will  discharge  the  purchaser  from  his  contract.^  But  where  A., 
who  claimed  real  estate  under  articles  of  agreement,  after  a  written 
contract  of  sale  by  him,  conveyed  one  moiety  of  his  interest  in 
certain  larger  premises,  including  the  ground  previously  sold,  to 
one  having  notice  of  the  previous  sale,  and  with  an  understanding 
that  it  was  to  be  carried  out ;  held,  such  conveyance  did  not 
amount  to  an  abandonment  of  the  contract  on  the  part  of  A.,  and 
furnished  no  ground  to  the  first  purchaser  to  refuse  to  complete 
the  bargain.* 

17.  On  the  other  hand,  the  party  against  whom  a  remedy  is 
sought  may  have  disabled  liimself  to  perform.  But  although,  in 
general,  a  bill  in  equity  will  not  lie,  after  a  party  has  put  it  out 
of  his  power  to  fulfil  a  contract  to  convey  land,  when  the  fact  of 
his  having  disqualified  himself  is  known  to  the  complainant  pre- 
vious to  the  filing  of  the  bill ;  yet,  where  no  action  could  be 
sustained  at  law,  but  a  bill  in  equity  might  have  been,  the  rule 
does  not  apply.  Hence,  where  a  parol  contract  was  sought  to  be 
enforced  on  the  ground  of  part  performance,  and  no  action  could 
have  been  brought  for  damages,  this  was  held  no  objection  to  the 
bill,  although  filed  after  the  party  contracting  had  conveyed  away 
the  property.  In  such  a  case,  the  assessment  of  damages  in  equity 
is  the  only  remedy.^ 

18.  With  regard  to  the  particular  acts  which  the  vendor  or 
vendee  is  to  perform,  in  order  to  establish  a  legal  claim  against 
the  other  party  to  the  contract ;  there  is  some  conflict  in  the 
authorities  upon  the  point,  under  what  circumstances,  and   by 

1  Thurston   v.    Franklin    College,    16         ^  j^^n  „.  Stone,  37  111.  224. 
Penn.  154.  *  Tiernan  v.  Uoland,  lA  I'enn.  429. 

'■2  Buttrick  v.  Holden,  8  Cush.  233.  5  Jervis  v.  Smith,  1  Iloilni.  Ch.  470. 


30  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 

whom,  a  deedo^  the  land  sold  is  to  be  tendered.Qa)  The  prevailing 
rule,  however,  seems  to  be,  that  where,  in  a  sale  of  land,  the  acts 
of  the  parties  are  to  be  concurrent,  in  order  to  maintain  an  action 
for  the  price  or  for  damages  for  a  breach,  the  seller  must  prove 
tender  of  a  deed,  or  that  the  defendant  had  waived  such  tender,  or 
by  his  conduct  made  it  nugatory.^  More  especially,  a  vendor  is 
bound,  on  payment  of  the  price,  to  prepare  and  tender  a  deed.^ 
So,  where  land  was  sold,  to  be  paid  for  in  instalments,  and  a 
bond  given,  conditioned  for  payment  of  the  several  instalments 
and  conveyance  of  the  land ;  held,  the  payment  of  the  last  instal- 
ment and  the  making  of  the  deed  were  concurrent  acts,  and  an 
action  for  such  instalment  could  not  be  maintained,  without  show- 
ing a  tender  of  the  deed.^  So  a  bond  to  convey  is  broken  by  the 
obligor's  refusal  to  convey,  though  the  obligee  does  not  present  a 
deed  for  him  to  execute.*  So,  to  enable  the  plaintiff  to  recover 
the  purchase-money  paid  on  a  contract  for  land,  after  the  defend- 
ant fails  to  make  conveyance  according  to  agreement,  it  is  not 
necessary  for  him  to  tender  a  deed  for  the  defendant  to  execute, 
unless  expressly  required  to  do  so  by  the  contract.^  So,  where 
there  is  a  mutual  obligation,  on  a  purchaser  to  pay  or  secure  the 
purchase-money,  and  on  the  vendor  to  convey  the  property,  an 
offer  and  readiness  to  perform,  on  the  part  of  the  purchaser,  is 
enough,  especially  where  the  vendor  refuses  to  convey  at  all.^  So, 
where  a  vendor  has  no  title,  and  cannot  procure  or  cause  one  to 
be  made,  the  vendee  may,  without  preparing  and  tendering  a  deed, 
obtain  in  equity  a  rescission  of  tlie  contract^  So,  if  a  complaint, 
upon  a  contract  for  sale  and  exchange  of  land,  alleges  a  request  to 
convey  and  a  refusal,  which  are  not  denied  by  the  answer,  a  de- 
mand for  a  deed  need  not  be  proved.^ 

19.  Where  several  lots  are  sold,  the  vendor  is  bound,  if  required, 
to  give  separate  deeds ;  and  his  offer  to  execute  one  deed  for  the 
whole  does  not  render  the  contract  entire.^ 

20.  A  vendor,  having  tendered  a  deed,  conformably  to  his  con- 
tract, executed  and  acknowledged  according  to  the  law  in  force  at 
the  time  of  the  tender,  may  file  a  bill  in  chancery  for  the  purchase- 

1  Dubignon  v.  Loud,  5  Rich.  251.  «  Bellinger  v.  Kitts,  6  Barb.  273. 

'-!  Walling   V.    Kinnard,    10  Tex.  508.          7  Kead  v.  Walker,  18  Ala.  323. 

See  Duke  v.  Sliore,  1  H.  Bl.  270.  «  Fagan  v.  Davison,  2  Duer,  153. 

'^  Hook  V.  Nebeker,  1  Smith,  92.  9  Van  Eps  v.  Schenectady,  12  Johns. 

4  Garnett  v.  Yoe,  17  Ala.  74.  436. 

5  Carson  v.  Lucore,  1  Iowa,  33 ;  Pow- 
ers V.  Bridges,  lb.  235. 

(a)  See  Tender. 


CHAP.    III.]  CONSIDEEATION.  —  PRICE.  31 

money ;  but  if,  before  a  decree  (the  deed  not  having  been  deliv- 
ered), the  form  of  acknowledgment  be  changed  by  law,  the  decree 
for  the  complainant  sho\ild  be,  that  he  deliver  the  deed  duly 
executed  and  acknowledged,  and  that  the  defendant  at  the  same 
time  pay  the  purchase-money.^ 

21.  Although  it  is  the  duty  of  a  vendor  to  prepare  and  offer  a 
deed,  if  he  knows  the  vendee ;  where  he  does  not,  and  the  repre- 
sentative of  the  vendee  refuses  information  when  asked,  the 
vendor  may  recover  the  purchase-money  without  an  offer  of  the 
deed.^  So,  in  an  action  for  the  purchase-money  of  real  estate, 
for  which  the  purchaser  had  given  his  negotiable  promissory 
note,  the  plaintiff  is  not  bound  to  show  a  conveyance;  the  pre 
sumption  being,  that  the  defendant,  having  thus  given  his  note, 
was  satisfied  with  the  execution  of  the  contract  on  the  part  of  the 
plaintiff.^ 

22.  On  the  other  hand,  it  has  been  held,  that,  in  tlie  absence 
of  any  express  agreement,  the  purchaser  pays  the  cost  of  a  con- 
veyance.^ So  it  has  been  held,  that  something  more  than  simple 
notice  is  necessary,  on  the  part  of  a  purchaser,  of  his  design  to 
rescind  the  agreement.  He  must,  on  the  day  fixed  for  completion 
of  the  contract,  or,  where  no  day  is  fixed,  within  a  reasonable 
time,  demand  a  conveyance,  with  notice  that,  if  the  contract  is 
not  completed,  he  will  not  be  bound  by  it ;  and,  by  the  custom 
of  the  State  of  Pennsylvania,  he  should  tender  for  execution  the 
necessary  papers,  especially  where  the  time  of  payment  is  optional 
with  him.^  So  also,  it  is  held  in  New  York,  that  it  is  not  neces- 
sary for  a  vendor,  under  a  covenant  to  convey,  to  make  out  and 
tender  a  deed  on  the  day  the  purchase  is  to  be  completed.  He  is 
not  bound  to  prepare  it,  until  the  buyer  is  ready  to  demand  it ; 
and  even  then,  the  vendor  is  allowed  a  reasonable  time  to  draw 
and  execute  the  deed  ;  and,  after  being  thus  drawn  and  executed, 
he  is  to  hold  it  ready  for  delivery  when  required ;  and  till  then  he 
is  not  in  default.  Although  a  purchaser  may  prepare  the  deed 
and  tender  it  for  execution  (and  then  only  one  demand  is  neces- 
sary), yet  still,  it  has  been  said,  the  above  appears  to  be  the 
settled  law  of  the  State.^  So,  where  one  agrees  to  convey  land, 
on  the  payment  of  money,  the  vendee  must  not  only  tender  or  pay 

1  Conwell  V.  Claypool,  8  Blackf.  124.  ^  Winter  v.  Jones,  10  Geo.  190. 

2  Christian  v.  Nixon,  11  Ired.  1.  ^  Tiernan  v.  Roland,  15  Penn.  429. 

3  Lyman   v.  United   States   Bank,  12  *>  Wells  v.  Smith,  2  Edw.  78. 
How.  225. 


32  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  III. 

the  money,  but  demand  a  conveyance ;  and,  after  waiting  a  rea- 
sonable time  to  have  it  made  out,  must  present  himself  to  receive 
it.i(a)  But  a  purchaser  is  not  bound  to  prepare  and  tender  a  deed, 
if  the  vendor  is  unable  to  give  a  title  as  agreed. ^  Nor  to  tender 
the  purchase-money  and  demand  a  title.^  And  any  obligation  on 
the  part  of  one  party,  to  tender  a  sufficient  instrument  for  execu- 
cution  by  the  other,  may  be  waived  by  a  general  refusal  of  the 
latter  to  complete  the  contract.  Thus,  the  vendors  of  real  estate, 
under  articles  of  agreement  with  one  who  claimed  under  one  of 
the  vendors,  in  due  time  executed  a  deed  to  the  vendee  and  her 
heirs,  and  endeavored  to  have  it  tendered  to  her,  but  the  tender 
was  prevented  by  her  sickness  and  death.  The  deed  was  after- 
wards offered  to  her  executors,  accompanied,  however,  with  a 
mortgage,  and  bonds  for  execution.  The  deed  was  insufficiently 
acknowledged  by  the  wives  of  the  grantors,  and  the  bonds  were 
not  conformable  to  the  contract,  as  to  the  time  of  payment ;  but 
the  executors  or  devisees  did  not  object  to  receiving  them  on  this 
ground,  but  refused  generally  to  perform  the  contract.  There 
was  no  evidence  of  a  refusal  by  the  vendors  to  amend  the  acknowl- 
edgment, or  to  accept  of  other  securities,  in  accordance  with  the 
contract.  Held,  such  tender  was  evidence  of  the  willingness  and 
desire  of  the  vendors  to  comply  with  their  agreement.^ 

23.  With  regard  to  the  party  to  whom  payment  for  land  pur- 
chased is  to  be  made,  it  has  been  doubted,  whether  a  power  to 
sell,  unrestricted,  authorizes  the  agent  to  receive  payment.^ 

24.  Questions  sometimes  arise  from  the  joint  or  distinct  inter- 
ests of  different  parties  in  the  purchase-money  of  land,  or  in  the 
land  itself,  as  connected  with  the  price  paid,  or  to  be  paid,  for  it. 

25.  Where  several  parties  agree  to  pay  a  certain  sum  upon 
another  party's  tendering  a  deed,  it  is  sufficient  to  offer  the  deed 
to  one  of  them.^ 

26.  Two  persons  united  to  purchase  a  tract  of  land,  for  which 
they  gave  $3,000  ;  and  entered  into  a  contract  under  seal,  by 
which  one  was  to  pay  $2,000,  and  the  other  $1,000,  of  the  pur- 

1  Fuller  V.  Hubbard,  6  Cow.  13.  9  Leigh,  387  ;    Mynn  v.  Joliffe,  1   Moo. 

2  Johnson  v.  Collins,  17  Ala.  318.  &  R.  326 ;  State  of  Illinois  v.  Delafield,  8 

3  Griggs  V.  Woodruff,  14  Ala.  9.  Paige,  527. 

4  Tiernan  v.  Roland,  15  Penn.  429.  «  Oatman  v.  Walker,  83  Maine,  67. 

5  Hackney  v.  Jones,  3  Humph.  612 ; 

(a)    See,  for  a  fuller  account  of  the  divisions  upon  this  subject,  chapters  12  and 
seq.     Also,  Demand,  Tender. 


CHAP.   III.]  CONSIDERATION.  —  PRICE.  33 

chase-money,  and  the  land  to  be  equally  divided  between  them. 
Held,  each  was  to  have  a  moiety  of  the  land.^ 

27.  A.  and  six  others  entered  into  articles  of  agreement  with 
B.,  respecting  the  purchase  of  Western  lands,  on  the  joint  account 
of  all.  The  seven  were  to  provide  funds,  to  meet  the  drafts 
which  B.  should  make  on  A.,  and  the  money  was  to  be  expended 
by  B.  in  making  the  purchases.  Conveyances  were  to  be  taken  to 
A.,  in  trust  for  all  the  associates.  B.  was  to  draw  the  drafts  at 
not  less  than  ten  days'  sight,  and  to  make  to  A.  monthly  statements 
of  his  purchases.  B.  accordingly  purchased  lands  of  C.  in  Michi- 
gan, took  a  conveyance  to  A.,  and  placed  it  on  record.  For  a 
portion  of  the  purchase-money,  not  paid  down,  he  gave  the  notes 
of  A.  at  one  and  two  years,  signing  them  as  the  agent  of  A. ;  and, 
when  the  notes  became  due,  he  substituted  for  them  drafts  on 
A.  Soon  after  the  purchase,  B.  communicated  it  personally  to 
six  of  the  associates,  and  stated  to  them  the  price  and  time  of 
payment,  and  they  approved  thereof.  He  also  transmitted  the 
conveyance  to  A. ;  and  it  did  not  appear  that  A.  or  any  of  the 
associates  had  done  any  act  repudiating  the  purchase  ;  but 
the  drafts  were  neither  accepted  nor  paid.  Held,  the  associates 
were  liable  to  C.  for  the  price  of  the  lands  agreed  upon,  in  an 
action  for  lands  sold  and  conveyed  to  A.  at  their  request ;  and 
that,  after  the  lapse  of  a  considerable  time,  they  should  be  deemed 
to  have  waived  any  objection  to  the  purchase  on  the  ground  of 
B.'s  having  exceeded  his  authority.^ 

28.  A.  contracted  to  purchase  lands  of  B.,  and  then  to  sell  a 
part  of  them  to  C.  Afterwards,  A.  assigned  his  original  contract 
to  D.,  by  way  of  mortgage ;  D.  having  notice  of  the  contract  be- 
tween A.  and  C.  For  the  purpose  of  extinguishing  the  interest 
of  A.,  B.  exacted  a  forfeiture  of  the  original  contract,  on  account 
of  the  non-payment  of  the  purchase-money,  subject,  however,  to 
the  rights  of  C.  and  D. ;  and  D.  subsequently  took  a  conveyance 
from  B.  of  the  whole  of  the  land.  Held,  the  portion  of  the  land 
not  contracted  by  A.  to  C.  was  the  primary  fund  for  the  payment 
of  the  original  purchase-money ;  and,  such  portion  being  sufficient 
for  that  purpose,  that  D.  was  bound  to  convey  to  C.  his  portion 
of  the  land,  on  being  paid  by  C.  such  a  sum  only  as  remained 
unpaid,  on  the  contract  between  A.  and  C.^ 

1  Stubblefield  v.  Beazely,  5  Gratt.  51.  ^  drafts  v.  Aspinwall,  2  Comst.  289. 

'^  Sage  V.  Sherman,  2  Comst.  417. 


34  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    III. 

29.  Land  of  A.  was  sold  on  an  execution  in  favor  of  B.,  and  C. 
paid  to  B.  a  part  of  the  amount  of  the  judgment,  with  an  under- 
standing that,  upon  the  payment  of  an  additional  sum,  B.  should 
convey  the  land  to  C.  in  trust  for  the  wife  and  children  of  A.  0. 
died,  without  having  paid  said  additional  sum,  and  B.  paid  over 
to  C.'s  administrator  the  amount  which  C.  had  paid.  Held,  the 
administrator,  by  receiving  said  sum,  had  rescinded  the  contract 
for  a  conveyance  made  between  B.  and  C.^ 

1  Smith  V.  Smith,  1  Greene,  307. 


CHAP.    IV.]  INTEREST.  35 


CHAPTER    IV. 


INTEREST. 


1.    Claim  of  a  vendor  for  interest.  11.    Claim  of  a  vendee  for  interest 

8.  Rate  of  interest.  17.     Interest  on  nionej'  paid  into  Court. 

9.  Interest  in  case  of  reversions,  23.     Claim  for  improccments. 

1.  Having  in  the  last  chapter  considered  the  subject  o^  consider- 
ation or  price,  we  proceed,  in  the  natural  order  of  topics,  to  treat 
of  the  liability  of  the  respective  parties  to  a  contract  of  sale  to  pay 
interest;  the  one  upon  the  purchase-money  unpaid,  the  other  upon 
the  purchase-money  paid,  but  for  any  cause  subject  to  be  recovered 
back  by  the  purchaser.  Upon  this  subject,  the  decisions  cannot 
be  regarded  as  wholly  reconcilable,  nor  the  law  as  very  definitely 
settled.     The  distinctions  certainly  are  extremely  nice. 

2.  In  general,  a  purchaser,  being  entitled  to  the  profits  from  the 
execution  of  the  agreement,  is  bound  to  pay  interest  from  that 
time,  more  especially  if  in  possession.^(a)     Interest  begins  when 

1  See  Stevenson  r.  Maxwell,  2  Comst.  Birch  v.  Joy,    18  Eng.    Law  &  Eq.   16 ; 

408  ;  Hood  v.  Huff,  2  Const.  163  ;  Kester  v.  Hundley  v.  Lyons,  5  Munf.  342 ;  Dyer  v. 

Rockel,  2  W.  &  S.  365  ;  Ramsay  v.  Brails-  Hargrave,  10  Ves.  505  ;  Baxter  v.  Brand, 

ford,  2  Desaus.  592  ;  Burnell  v.  Brown,  1  2  Dana,  298  ;  Buchanan  v.  Lorman,  3  Gill, 

Jac.  &  W.  168;  Child  r.  Abingdon,  1  Ves.  82;  Brockenbrough  v.  Blythe,   3  Leigh, 

94 ;  Mayo  v.  Purcell,  3  Munf.  243  ;  2  Sandf.  647  ;  WiUiams  v.  Rogers,  2  Dana,  375. 
Ch.  273 ;  Fashott  v.  Reed,  16  S.  &  R.  266 ; 

(«)"  The  fair  terms,"  it  is  said,  "would  have  both.     Where  the  purchaser  is  let 

be  to  put  the  parties  in  the  same  situation  into  the  possession  and  the  perception  of 

as  if  the  contract  had  been  performed  at  the   rents  and   profits   of  the  purchased 

the  day ;  and  therefore  rents  should  be  ac-  estates,  he  must  pay  interest  for  his  pur- 

coimted  for  on  one  side,  and  interest  on  the  chase-money  ;  and,  if  the  rule  be  not  uni- 

other;   but   then   that   would   be  on  the  versal,  the  party  who  claims  an  exemption 

ground  that  the  purcliaser  ought  to  have  from  its  operation  must  bring  himself  with- 

taken  the  estate  without  a  title,  for  none  in  some  established  exception.    That  rents 

was  ready  at  the  day ;   therefore  the  only  and   profits  ordinarily  bear   but   a   small 

fair  mode  is  to  give  the  purchaser  his  in-  proportion   to   the   interest   of   purchase- 

terest  on  the  deposit  down  to  the  time  money,  cannot  be  denied.     This  is  very 

when  the  title  was  cleared  by  the  King's-  strikingly  the  case  in  Virginia.     Hence, 

Bench  judgment,  the  i)urchaser  not  being  where  there  has  been  a  sale  and  delivery 

bound  to  take  the  estate  till  then."   Pincke  of  possession,  and  the  contract  has  been 

V.  Curteis,  4  Bro.  C.  C.  333,  n.  disaffirmed,  tliere  can  be  no  propriety  in 

"  As  to  interest  and  profits,  the  vendor  the  application  of  the  rule.     Accordingly, 

is  to  be  considered  the  owner  of  the  money,  it  never  has  been  so  applied.     But  where 

and  entitled  to  the  interest ;  while  the  ven-  a  man  purchases  land,  he  has  made  up  his 

dee  is  regarded  as  the  owner  of  the  land,  mind  to  give  liis   money,    which    wt>uld 

and  entitled  to  the  profits.    But  he  cannot  produce  a  good  interest,  for  land  which 


36 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IV. 


the  money  is  due  ;  the  right  to  rents  and  profits,  when  the  vendee 
is  entitled  to  possession.^  So  if  the  contract  specifies  no  time  for 
a  conveyance,  but  the  price  is  made  payable  upon  receiving  a  deed, 
the  law  implies  immediate  execution.  Hence  the  vendor  becomes 
immediately  liable  for  rents  and  profits,  and  the  vendee  for  inter- 
est.^ Thus  where  delay  is  caused  by  the  vendor's  death.^  So 
where  a  leasehold  farm  was  sold,  and  three  years  had  expired 
pending  a  suit  by  the  vendor  who  was  in  possession,  interest  was 
allowed,  and  he  was  charged  with  a  rent.'^  So  where  parties 
already  in  possession  agreed  to  purchase,  and  pay  the  price  on  a 
certain  day,  "  on  a  good  and  valid  title  being  made  and  executed," 
and  a  title  was  not  made  for  many  years,  but  they  remained  in 


1  Baxter  v.  Brand,  2  Dana,  298.  See 
Buchanan  v.  Lorman,  3  Gill,  82  ;  Brocken- 
broiigh  V.  Blytlie,  3  Leigh,  647 ;  Williams 
V.  Rogers,  2  Dana,  375. 


'^  Hundley  v.  Lyons,  5  Munf.  342. 

3  M'Kay  v.  Melvin,  1  Ired.  73. 

4  Dyer  v.  Hargrave,  10  Ves.  505. 


will  produce  much  less.  Thus,  in  the 
present  case,  had  the  title  been  made,  and 
the  money  paid,  the  purchaser  must  have 
been  content  with  the  scanty  rents,  while 
the  seller  would  have  been  receiving  full 
interest.  Now,  since  a  Court  of  Equity 
looks  upon  the  sale  as  complete  so  soon 
as  the  parties  have  contracted,  it  is  quoad 
this  matter,  the  same  thing  as  if  the  con- 
veyance had  been  actually  made  ;  provided 
the  vendee  has  had  actual  possession  and 
uninterrupted  enjoyment,  and  there  are 
no  particular  circumstances  to  take  the 
case  out  of  the  general  rule.  From  the 
moment  of  the  contract,  the  buyer  is  the 
owner  of  the  land,  and  must  rest  satisfied 
with  his  rents  ;  and  the  seller  is  the  owner 
of  the  money,  and  is  entitled  to  his  inter- 
est." Per  Tucker,  Pres  ,  Brockenbrough 
V.  Blythe,  3  Leigh,  619. 

So,  where  the  execution  of  a  deed  and 
payment  of  the  price  are  to  be  simul- 
taneous acts,  the  mere  omission  of  the 
vendor  to  give  the  deed,  before  demand 
or  offer  of  payment,  is  not  such  a  default 
as  will  exempt  the  vendee  in  possession 
from  payment  of  interest.  Stevenson  v. 
Maxwell,  2  Comst.  408.  Thus  the  plain- 
tiff and  defendant  were  jointly  interested 
in  a  lease  of  vacant  and  unimproved  city 
property.  They  also  had  an  equitable 
title  to  the  reversion,  under  a  covenant  of 
the  lessor,  contained  in  the  lease,  to  con- 
vey the  property  in  fee.  The  plaintiff 
contracted  to  sell  to  the  defendant  all  his 
interest  in  the  property,  the  conveyance 
to  be  given,  and  the  price  paid  or  secured, 
on  a  certain  day.     The  day  passed,  noth- 


ing having  been  done  in  execution  of  the 
agi'eeinent  by  either  party ;  but  the  de- 
fendant proceeded  to  erect  stores,  &c., 
upon  the  land,  and  received  large  rents 
and  profits  ;  and,  in  an  account  afterwards 
stated,  he  was  charged  with  the  purchase- 
money  and  interest,  but  not  with  any  part 
of  the  rents.  Held,  his  possession,  &c., 
were  under  the  contract  of  sale,  not  the 
lease,  and  he  was  bound  to  pay  interest  on 
the  price.  The  Court  remark  (ibid.  415) : 
"  The  most  that  can  be  said  is,  that  the 
complainant  did  not  put  the  defendant  in 
default,  not  that  he  was  in  default  himself. 
This  is  not  sufficient  to  excuse  the  pay- 
ment of  interest.  Here  the  defendant 
had  the  benefit  of  the  purchase-money. 
His  situation  is  the  same  as  if  he  had  re- 
ceived a  conveyance  and  given  security 
according  to  the  contract,  when  he  must 
have  paid  interest.  He  was  compelled  to 
borrow  to  make  improvements ;  the  money 
was  therefore  of  importance  to  him.  In 
addition  to  which  lie  received  all  the  rents 
and  profits.  A  weaker  case  for  exemption 
from  the  jiayment  of  interest  can  scarcely 
be  imagined.  The  fact,  that  the  lot  was 
unimproved  when  sold,  does  not  vary  the 
equity  of  the  case.  It  was  vacant  when 
purchased  by  these  parties ;  but  we  cannot 
suppose  that,  after  pacing  $6,000  for  open- 
ing a  street,  they  intended  it  should  remain 
so.  They  designed  to  improve  it.  The 
contract  deprived  the  complainant  of  the 
right  to  do  this  on  his  own  accoimt  or  in 
conjunction  with  the  defendant,  and  trans- 
ferred that  privilege  to  the  latter  exclu- 
sively." 


CHAP.    IV.] 


INTEREST. 


37 


possession,  and  did  not  appropriate  the  purchase-money ;  they 
were  held  liable  for  interest  from  the  day  mentioned. ^  So,  upon 
the  sale  of  a  leasehold  farm,  three  years  having  expired  i)ending  a 
suit  in  relation  to  the  property ;  interest  was  given  to  the  vendor, 
and  a  rent  charged  upon  him,  on  account  of  his  possession. ^  And 
a  tender  of  the  price  does  not  stop  interest,  where  the  money  and 
land  have  been  used  by  the  purchascr.^(rt) 

3.  The  general  rule,  however,  by  which  a  vendee  is  required  to 
pay  interest,  is  subject  to  exceptions  depending  on  the  circum- 
stances of  the  case.(^))     Where  the  express  agreement  between 

1  Atty .-General  v.  Christ  Church,  13    v.  Fitzgerald,  2  Dw.  &  W.  43 ;  Oliver  v. 
Sim.  214 ;  Fludyer  v.  Cocker,  12  Ves.  25.     Hallam,  1  Gratt.  298. 
See  Portman  v.  Mill,  3  Jur.  356  ;  Enraght         '^  Dyer  v.  Ilargrave,  10  Ves.  605. 

,  3  Nantz  V.  Lober,  1  Duv.  304. 


(a)  In  a  late  English  case,  being  a  bill 
for  specific  performance  brought  by  a  ven- 
dor, the  defendant  not  objecting  to  a  decree 
therefor ;  it  appeared  that  the  property 
had  yielded  a  comparatively  small  rent, 
and  the  state  of  the  vendor's  title  was 
such  that  several  years  elapsed  before  the 
title  could  be  completed.  The  contract 
provided,  that;  if  from  any  cause  whatever 
the  purchase  should  not  be  completed  on 
the  day  appointed,  interest  should  run 
upon  the  purchase-money.  The  purcliaser 
neither  invested  the  purchase-money  nor 
repudiated  the  contract,  but  went  on  ob- 
jecting to  the  title,  and  saying  once  or 
twice  that  he  objected  to  paying  interest. 
The  general  rule  was  applied,  that  the 
mere  existence  of  difficulties  as  to  the 
title,  which  justify  the  purchaser  in  refus- 
ing to  complete  until  they  are  removed, 
does  not  exempt  him  from  tlie  clause 
relating  to  interest.  To  justify  such  ex- 
emption, there  must  be  some  serious  mis- 
conduct on  the  part  of  the  vendor.  Wil- 
liams V.  Glenton,  Law  Rep.  (Eng.)  Eq. 
Mar.  1866,  p.  205. 

(6)  In  Blount  v.  Blount,  3  Atk.  636, 
Lord  Hardwicke  declared,  that  as  no  pos- 
session was  delivered  to  the  purchaser  by 
virtue  of  his  purchase,  and  it  was  not  his 
default  at  all  that  the  conveyances  had 
not  been  made,  there  was  no  pretence  for 
making  him  pay  interest.  The  purchaser 
was  in  possession  before  making  the  pur- 
chase. Lord  Hardwicke  also  says,  that  it 
cannot  be  laid  down  in  certain,  tiiat  from 
the  time  of  possession  a  purchaser  shall 
always  pay  interest,  whetlier  the  estates 
are  in  possession  or  in  reversion,  whether 
purchased  under  a  private  agreement  or 
under  a  decree  for  a  sale.  As  to  estates 
in  possession  upon  a  private  purchase,  the 


Court  never  regards  execution  of  articles 
for  purchase,  but  the  time  of  the  execii- 
tion  of  conveyances ;  and  even  there,  if 
the  vendor  has  made  default  in  letting  the 
vendee  into  possession,  he  shall  not  pay 
interest  for  the  purchase-mone}^ ;  but,  if 
he  has  taken  possession,  the  Court  will 
give  such  interest  as  is  agreeable  to  the 
nature  of  the  land  purchased.  In  bid- 
dings before  masters,  they  are  made  gen- 
eral ;  and  tlie  Court  discourages  any 
particular  terms  to  bo  put  upon  those 
biddings.  If  the  purchaser  has  not  had 
possession  upon  execution  of  conveyances, 
he  shall  not  pay  interest  at  all ;  from  the 
time  of  delivery  of  possession,  he  shall. 
Lord  Hardwicke  further  remarks,  "As 
to  what  has  been  said  of  the  advantage  a 
purchaser  receives  from  wearing  out  of 
lives,  I  never  knew  the  Court  take  this 
into  their  consideration  as  a  reason  for  the 
purchaser's  paviiiL;-  interest."  So  in  Taton 
V.  Rogers,  6  i\ladd.  256,  the  Vice-Clian- 
cellor  said,  tiiat  a  decree  for  interest  from 
the  time  when  the  money  was  to  be  paid 
was  generally  made,  but  not  wliere  the 
vendor  lias  improperly  delayed  execution 
of  the  contract.  So  in  Esdaile  v.  Ste- 
phenson, 1  S.  &  S.  122,  (see  also  ISIonck 
V.  lluskisson,  4  Russ.  122,  n.  a ;  Jones  v. 
Mudd,  4  Russ.  118  ;  Bird.sall  v.  Waldron, 
2  Edw.  Ch.  315;  January  v.  Martin,  1 
Bibb,  586  ;  Hart  v.  Brand,  1  A.  K.  .Mar. 
159),  Sir  John  I^ach,  V.C,  hehl,  tiiat, 
where  tiiere  was  no  express  stipulation  to 
pay  interest,  and  the  delay  in  cdinpleting 
the  contract  was  occasioned  by  the  vendor, 
if  the  interest  much  exceeds  the  rents  and 
profits,  the  Court  gives  the  vendor  no 
interest,  but  leaves  him  in  possession  of 
the  intermediate  rents  and  profits. 


38 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IV. 


the  parties  seems  to  negative  tlie  allowance  of  interest,  it  will  not 
be  allowed. (a)  And  where  the  vendor  has  unjustifiably  caused 
delay,  and  the  interest  will  exceed  the  rents,  on  a  bill  for  perform- 
ance, he  will  be  refused  the  former,  retaining  the  latter.^  And 
although  a  vendee,  who  enters  and  continues  in  possession,  must 
pay  interest,  yet,  where  he  has  been  harassed  or  disturbed  in  his 
possession,  or  there  has  been  wilful  and  vexatious  delay,  or  gross 
or  criminal  laches,  on  the  part  of  the  vendor,  or  where  there  are 
well-founded  doubts  of  the  title,  or,  from  neglect  or  otherwise  for 
a  length  of  time,  no  administrator  of  the  deceased  vendor  has  been 
appointed  to  receive  payment ;  it  is  for  the  jury  to  determine 
whether  the  vendee  is  to  pay  interest.  The  interest  is  said  to  be 
given  by  way  of  damages ;  and  all  the  facts  should  be  considered 
by  the  jury,  under  the  direction  of  the  Court.^  And,  on  the  other 
hand,  it  being  a  general  rule  of  equity,  that  a  purchaser  in  posses- 
sion, receiving  the  rents,  is  liable  to  pay  the  purchase-money 
and  interest ;  an  agreement  which  appears  to  oppose  this  rule 
will  be  examined  in  a  Court  of  Equity  by  its  aid,  and  will  or  will 
not  be  enforced,  according  to  circumstances. (5)    So  where  payment 


1  Dias  V.  Glover,  1  Hoffm.  Ch.  72. 


-^  Kester  v.  Rockel,  2.  W.  &  S.  365. 


(a)  It  was  agreed,  that  A.  advance  B. 
£4,000  on  a  mortgage,  and,  within  one 
week  from  the  agreement,  B.  dehver  to  A. 
or  his  solicitor  a  complete  abstract  of  the 
title,  produce  the  title-deeds,  and  deduce 
and  show  a  good  marketable  title  within 
one  month  after  delivery  of  the  abstract ; 
otherwise  it  was  to  be  at  A.'s  option  to 
consider  the  agreement  void.  It  was  fur- 
ther provided,  that  B.  should  forthwith 
pay  to  A.  all  costs  and  charges  of  investi- 
gating the  title,  &c.  Abstracts  of  title 
were  delivered  soon  after  the  agreement, 
but  found  defective.  From  the  day  when 
the  title  ought  to  have  been  completed, 
for  about  eight  months,  negotiations  were 
going  on,  A.  objecting  to  the  title,  and 
informing  B.  that  his  money  had,  during 
the  whole  interval,  been  lying  idle,  and 
B.  endeavoring  to  amend  his  title,  when 
he  finally  failed  to  do  so,  and  the  negotia- 
tion ended.  A.  was  to  recover  the  amount 
of  costs  and  charges  incurred  by  him  in 
investigating  the  title,  and  interest  on  the 
£4,000,  which  had  been  thus  lying  idle. 
Held,  he  could  not  recover  the  interest. 
Bayley,  B.,  saj^s  :  "  The  words,  'all  costs 
and  charges  incurred  by  hira  in  investi- 
gating the  title,'  mean  only  what  are 
incurred  in  so  doing ;  and  it  is  impossible 


to  say  that  those  words  are  sufficiently 
extensive  to  cover  the  interest  of  money 
lying  by  during  the  time  the  parties  were 
in  treaty.  In  what  situation  was  the 
plaintiff?  His  money  was  lying  at  his 
banker's ;  and  he  might  have  made  a 
bargain,  that,  unless  the  agreement  was 
carried  into  effect,  then  the  loss  of  intei'est 
should  be  paid  and  borne  by  the  other 
party."  Sweetland  v.  Smith,  1  Cr.  &  M. 
585 

(b)  The  plaintiff,  in  March,  1812,  con- 
tracted for  the  purchase  of  an  estate  from 
the  defendant  for  £90,000.  The  estate 
was  very  much  incumbered ;  and  the  de- 
fendant was  to  make  a  title  free  from  all 
incumbrances,  except  one  mortgage  of 
£12,000.  The  plaintiff,  on  being  put  into 
possession  of  part  of  the  estates,  was  to 
pay  £16,000  on  the  24th  of  June,  1812, 
"  and  a  further  sum  of  £4,000  at  Michael- 
mas next,  on  the  defendant  putting  the 
plaintiff  into  the  actual  possession  of  the 
remainder,  free  from  all  incumbrances, 
except  the  mortgage  for  £12,000 ;  the 
further  sum  of  £25";000  in  March,  1813  ; 
£16,500  in  March,  1816 ;  and  £16,500  in 
March,  1818."  The  plaintiff  was  to  grant 
the  defendant  a  mortgage  of  all  the  es- 
tates for  securing  these  three  sums  at  the 


CHAP.    IV.]  INTEREST.  39 

is  to  be  made  upon  conveyance  of  the  land  at  a  certain  time,  and 
it  is  not  thus  conveyed,  the  purchaser  is  not  in  default  by  neglect- 
ing to  pay  the  price,  and  is  not  liable  for  interest  till  after  tender 
of  a  deed,  even  though  he  has  taken  possession,  if  the  land  is 
vacant  and  unproductive,^  or  if  such  possession  is  in  virtue  of  an 
express  agreement  therefor,^  or,  on  the  other  hand,  if  the  party  was 
previously  in  possession.^  So  a  purchaser  not  in  possession  is 
bound  to  pay  interest,  and  take  the  rents  and  profits,  only  from 
the  time  when  a  good  title  is  first  shown,  not  from  the  time  fixed 
for  completion  of  the  purchase.'*  Nor  is  the  purchaser  liable  for 
interest,  when,  upon  finding  a  difficulty  in  the  title,  he  immediately 
offers  to  rescind  the  contract,  redeliver  possession,  and  receive 
back  the  money  advanced,  which  the  vendor  refuses  ;  ^  or  deposits 
the  price,  with  notice  to  the  vendor :  nor  where  the  purchaser 
tenders  the  purchase-money,  and  the  vendor  refuses  it.^  Thus 
where  there  was  a  stipulation,  that  if,  by  reason  of  any  unforeseen 
or  unavoidable  obstacles,  the  conveyance  could  not  be  perfected 
for  execution  before  the  day  fixed,  the  purchaser  should  from  that 
day  pay  interest,  and  be  entitled  to  the  rents  and  profits,  and  the 
vendor  did  not  show  a  good  title  till  long  after  the  specified  day ; 
held,  he  was  entitled  to  interest  only  from  the  time  when  a  good 
title  was  first  shown."  The  distinction  is  made,  that,  where  the 
conditions  of  sale  provide  that  interest  shall  be  paid  from  a  certain 
oay,  if  the  purchase  be  not  then  completed  ;  the  purchaser  is  liable 

1  Stevenson  v.  Maxwell,  2  Sandf.  Cli.  5  Rutledge  v.  Smith,  1  M'C.  Ch.  403  ; 
273.  Blount  v.  Blount,  3  Atk.  630. 

2  McKennan  v.  Sternett,  6  Watts,  162.  *^  January  v.  Martin,  1  Bibb,  586. 

3  2  Sandf.  Ch.  273.  ^  Monk  v.  Huskisson,  4  Russ.  121,  n. 

4  Jones  V.  Mudd,  4  Russ.  118 ;  4  Bro. 
C.  329. 

respective  times  aforesaid,  "  with  legal  next,  in  case  the  title  shall  be  perfected, 
interest  from  Michaelmas  next."  Tlie  and  the  conveyances  and  other  assurances 
£20,000  not  having  been  paid,  nor  any  executed  at  that  time,  and,  if  not,  then 
of  the  incumbrances  cleared  oif,  a  new  to  commence  on  the  execution  of  such 
agreement  was  entered  into  in  October,  assurances."  Tlic  jilaintitf  was  let  into 
1812.  Tlie  plaintiff  was  forthwith  to  possession,  but  the  business  was  not  com- 
advance  £10,000,  to  pay  off  certain  in-  pleted.  In  a  suit  by  tlie  plaintifl"  for 
cumbrances  ;  to  be  let  into  immediate  specific  performance,  an  account  was  di- 
possession  ;  to  be  entitled  to  the  rents  rected  ;  and  it  was  held,  that  under  the 
and  profits  "from  Michaelmas  last;"  and  clause  in  the  second  agreement,  exempt- 
to  be  at  liberty  to  cut  timber,  &c.  The  ing  "  the  remainder  of  the  purchase- 
conveyances  were  to  be  executed  as  soon  money  "  from  the  i)ayment  of  interest, 
as  existing  difhculties  could  be  removed,  the  sum  remaining  unpaid  of  the  £20,000, 
and  every  possible  exertion  made  to  that  and  the  three  sums  constituting  the  .£58,- 
end.  It  was  further  agreed,  that  "  the  000,  must  be  taken  to  come  imder  tiiat 
interest  of  the  remainder  of  the  purchase-  description.  Birch  v.  Joy,  18  Eng.  Law  & 
money  shall  not  commence  till  Lady-day  Eq.  16. 


40  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IV. 

for  interest,  though  the  delay  was  caused  by  the  vendor ;  otherwise, 
where  is  no  express  stipulation. ^  Thus  a  purchase  was  to  be 
completed  on  a  certain  day,  when  the  purchaser  was  to  have  pos- 
session ;  and,  "if  from  any  cause  whatever"  the  purchase-money 
were  not  then  paid,  he  was  to  pay  interest.  The  transaction 
was  delayed  six  months,  for  want  of  proper  abstracts.  Held, 
unless  he  gave  up  the  rent,  the  purchaser  must  pay  interest  during 
that  time .2  Where  similar  terms  of  purchase  were  used,  and  the 
vendor  furnished  an  abstract,  the  terms  of  which  required  to  be 
verified  aliunde;  held,  he  was  not  entitled  to  interest,  though  the 
purchaser  had  not  demanded  such  verification.^  But  he  is  thus 
entitled  from  the  time  at  which  all  questions  of  title  and  convey- 
ance are  settled  by  the  counsel  of  the  parties  ;  accounting  for  rent 
received,  or  which  might  have  been  received  with  due  diligence.^ 
In  a  late  case,  where  a  vendee,  apprehending  no  danger  as  to  the 
title,  made  a  formal  tender,  not  in  good  faith,  but  for  an  unreason- 
able advantage,  and  subsequently  used  the  money,  as  well  as  the 
land  for  which  he  owed  it ;  he  was  held  liable  for  interest.^ 

4.  Where  specific  performance  was  prayed  both  by  original  and 
cross  bill,  after  considerable  delay  upon  the  title,  the  rents  were 
ordered  to  be  received,  and  interest  paid,  from  the  time  stipulated.* 
So  a  purchaser  under  a  decree  for  sale,  having  accepted  and  (on 
report  of  an  objection  to  the  title,  for  which  compensation  was 
ordered)  returned  possession,  must  pay  interest  on  the  purchase- 
money  from  the  time  at  which  he  took,  or  at  which  a  title  was 
shown  under  which  he  might  have  safely  taken,  possession,  and  is 
entitled  to  an  allowance  for  prior,  not  for  subsequent,  deterioration 
of  the  estate.'^ 

5.  The  general  rule,  however,  that  the  vendee  is  liable  for  inter- 
est, even  though  the  vendor  be  in  default,  is  to  be  qualified  by  the 
exception,  that  he  is  not  thus  liable,  provided  he  has  not  only  kept 
the  purchase-money  idle,  but  notified  the  vendor  of  the  fact.^  Thus 
a  purchaser,  upon  entering  into  possession,  paid  the  amount  of  his 
purchase-money  to  his  banker,  and  gave  notice  that  he  was  ready 


1  Esdale  v.  Stephenson,  1  Sim.  &  St.  5  Nantz  v.  Lober,  1  Duv.  304. 

122  ;  3  Munf.  243.  '^  Fenton  v.  Brown,  14  Ves.  143. 

2'Cowper  y.  Bakewell,  17  Eng.  Law  &  ■?  Binks   v.  Lord  Rokeby,  2   Swanst. 

Eq.  508.  222. 

s  Sherwin  v.  Shakspeare,  23  Eng.  Law  8  Brockenbrough  v.  Blythe,  3  Leigh, 

&  Eq.  199.  619  ;  Selden  v.  James,  6  Rand.  465. 

4  Ibid. 


CHAP.    IV.]  INTEREST.  41 

to  invest  it  in  such  manner  as  the  vendor  shoukl  require ;  but  no 
answer  was  returned  to  that  notice,  and  the  purchaser,  during  the 
investigation  of  the  title,  kept  in  the  hands  of  his  banker  a  balance 
equal  to  the  amount  of  the  purchase-money,  except  for  four  days, 
when  it  was  a  little  less.  Held,  the  purchaser  was  not  liable  for 
interest  on  the  difference  between  his  average  balance  during  the 
period  in  question,  and  during  the  three  preceding  years. ^ 

6.  The  purchaser  is  liable  for  interest,  although  he  have  actually 
advanced  money  in  connection  with  the  purchase,  if  by  agreement 
such  advance  is  to  be  applied  for  another  purpose  than  payment 
of  the  price.  Thus,  by  conditions  of  sale,  the  purchase-money  was 
to  carry  interest,  a  deposit  of  20  per  cent  to  be  paid,  and 
the  auction-duty  borne  equally  by  the  purchaser  and  the  ven- 
dor. The  purchaser  paid  only  the  amount  of  the  deposit,  and  out 
of  it  the  auctioneer  paid  the  whole  of  the  auction-duty.  Held,  tlie 
portion  of  the  deposit,  applied  in  discharge  of  the  purchaser's 
moiety  of  the  auction-duty,  was  to  be  considered  as  an  unpaid  part 
of  the  purchase-money,  and  that  the  vendor  was  entitled  to  interest 
on  it.^ 

7.  A  purchaser  thoroughly  informed  of  defects  in  the  title,  but 
agreeing  to  pay  interest  from  a  certain  day,  shall  not  be  relieved 
on  the  ground  that  he  could  not  get  possession  of  part  of  the  land, 
which  he  knew  at  the  time  to  be  held  by  another  person.^  So  a 
vendee  on  credit,  to  whom  a  deed  is  made  and  possession  given,  is 
not  excused  from  paying  interest,  though  payment  has  been  de- 
layed by  an  adverse  claim,  and  a  protracted  suit  thereon,  but  which 
terminated  in  his  favor,  he  having  continued  all  that  time  in  pos- 
session, and  enjoyed  the  issues  and  profits. (a) 

1  Ibid. 

2  Townshend  v.  Townshend,  2  Kuss.  303. 

3  Mayo  V.  Purcell,  3  Munf.  243. 

(a.)  The  Court  remarked,  that  the  ven-  ductive  by  him,  and  that  he  gave  the  ven- 
dor, having  only  covenanted  to  sell  and  dor  notice  that  it  was  so  unproductive, 
convey  a  perfect  title,  which  was  so  con-  Although  the  adverse  claim  was  b}'  the 
veyed,  as  proved  by  the  result  of  the  trial,  Commonwealth,  who  proceeded  to  escheat 
—  not  that  there  should  be  no  adverse  the  land  by  inquisition  (which  was  opposed 
claimants,  —  committed  no  breach  of  his  by  tlie  vendee  by  a  Monstmns  de  droit,  who 
covenant  which  excuses  the  vendee  from  defeated  the  claim),  the  sujiposed  seisin  in 
paying  interest ;  nor  can  the  vendee's  law  into  the  hands  of  the  Commonwealth 
costs  be  set  off  against  the  interest.  To  by  the  office  found,  and  the  suj^poscd 
excuse  the  vendee  from  paying  interest  liability  of  the  vendee  to  the  Cumnion- 
during  the  time  that  the  adverse  claim  is  wealth  for  tlie  rents  and  jirofits,  did  not  pre- 
in  suit,  it  is  not  sufficient  that  he  should  vail  over  the  actual  seisin  of  the  vendee  ; 
be  ready  and  willing  to  pay  the  principal ;  and,  as  he  actually  enjoyed  the  issues  and 
it  ought  also  to  appear  clearly,  that  lie  did  profits  during  tlie  whole  time,  and  by  the 
in  fact  keep  the  money  useless  and  unpro-  result  became  exempted  from  all  liability 


42 


LAW    OF   VENDOES    AND   PURCHASERS.  [CHAP.    IV. 


8.  With  regard  to  the  rate  of  interest  to  be  paid  by  a  purchaser, 
it  has  been  sometimes  held  in  England,  that  he  shall  be  charged 
with  5  per  cent  interest  on  the  purchase-money  unpaid.^  But,  on 
the  other  hand,  on  the  bill  of  a  vendor,  the  purchase-money  was 
decreed  to  be  paid,  with  4  per  cent  from  the  time  it  ought  to  be 
paid.2  And  this  is  said  to  be  the  general  rate  allowed  in  the  Eng- 
lish Courts  of  Equity.^(a) 

9.  It  has  been  held,  that  the  purchaser  of'  a  reversion^  or  of  any 
estate  the  value  of  which  is  increased  by  the  wearing  of  lives,(b') 
must  pay  interest  from  the  time  of  purchase.*(c)  But,  on  the  other 
hand,  it  has  been  held,  that  the  purchaser  of  a  future  interest,  after 


1  See  Sugd.  on  V.  &  P. 

2  Calcraft  v.  Roebuck,  1  Ves.  221. 

3  Cliild  V.  Lord  Abingdon,  1  Ves.  94. 

*  Trefusis  v.  Lord  Clinton,  2  Sim.  359 ; 


Bailey  v.  Collett,  23  Eng.  Law  &  Eq.  263  ; 
Champernowne  v.  Brooke,  3  Cla.  &  F. 
4 ;  3  Y.  &  Coll.  510. 


for  them  to  the  Commonwealth,  that  sup- 
posed legal  seisin  of  the  Commonwealth 
forms  no  excuse  to  the  vendee  for  not 
paying  interest  to  the  vendor.  Selden  v. 
James,  6  Rand.  465. 

(a)  When  purchase-money  is  to  be  paid, 
and  a  conveyance  made,  at  a  given  time, 
but  disputes  arise  as  to  the  title,  and  the 
purchaser  proposes  to  the  vendor  to  lay  out 
the  purchase-money  in  exchequer  bills  till 
it  is  wanted,  but  the  vendor  returns  no 
answer,  and  the  money  is  so  laid  out ;  the 
vendee  is  at  the  risk,  and  is  entitled  to  the 
benefit,  of  such  purchase-money,  with  4 
per  cent  interest.  Acland  v.  Gaisford,  2 
Mad.  28.  So  where  the  completion  of  a 
contract  was  delayed  for  thirteen  years, 
and  the  property  became  deteriorated  by 
dilapidations ;  held,  the  loss  must  fall  on 
the  purchaser,  as  the  state  of  the  title  was 
sucli  that  lie  ought  to  have  completed 
his  purchase  and  taken  possession ;  and 
he  should  pay  interest  at  4  per  cent  only 
fi'om  the  time  of  filing  tlie  bill.  Minchin 
V.  Nance,  4  Beav.  332.  So,  in  a  late  case, 
real  estate,  in  possession  and  reversion, 
was  offered  for  sale  at  auction  in  lots, 
under  condition  tliat  on  or  before  Decem- 
ber 25,  1849,  tlie  vendors  should  confirm 
the  master's  report  of  purchases,  and  each 
purchaser  pay  the  purchase-money  into 
Court,  and  be  entitled  to  rents  from  that 
day  ;  and  if,  from  any  cause  whatever,  tlie 
money  should  not  be  so  paid,  it  sliould 
bear  interest  from  that  day,  at  5  per  cent. 
Through  fault  of  the  vendors,  the  mas- 
ter's report  was  not  confirmed  till  August 
1851.  On  motion,  that  a  purchaser  of  a 
reversion  in  fee,  being  one  of  the  lots, 
should  pay  the  purchase-money  into  Court, 


with  interest  from  December  25,  1849 ; 
lield,  interest  should  be  paid  from  that 
time  at  4  per  cent.  Wallis  v.  Sarel,  13 
Eng.  Law  &  Eq.  138. 

The  purchase-money  of  an  estate  was 
to  be  paid  by  six  instalments,  with  inter- 
est at  5  per  cent,  until  the  day  of  payment. 
It  was  subsequently  agreed,  that  the  last 
instalment,  instead  of  being  paid  at  the 
appointed  day,  should  remain  on  mort- 
gage, at  4i  per  cent,  for  fourteen  years, 
but  that  the  stipulations  of  the  first  con- 
tract, as  to  the  previous  instalments, 
should  continue  in  force.  Held,  the  re- 
duction from  5  to  4.^  per  cent  was  depend- 
ent upon  the  fulfilment  of  the  terms  of  the 
first  contract  with  respect  to  the  prior 
instalments.  Attwood  v.  Taylor,  1  Mann. 
&  Grang.  279. 

{h)  As  to  interest  in  case  of  the  sale  of 
timber  or  ^fixtures,  with  reference  to  the 
increasing  value  hy  natural  growth  in  the 
one  case,  and  the  deterioration  arising 
from  wear  and  tear  in  the  other  ;  see  Dart 
on  V.  &  P.  295-6 ;  Dyer  v.  Hargrave,  10 
Ves.  510;  Dakin  v.  Cope,  2  Russ.  176. 

(c)  Tlius  where  a  reversion  expectant 
on  an  estate  for  life  was  decreed  to  be 
sold,  B.  was  confirmed  the  best  pur- 
chaser, and  the  order  made  absolute  on 
the  1st  of  January,  1724;  and  in  Jan- 
uary, 1726,  B.  was  ordered  to  bring  his 
money  into  the  bank.  The  life  having 
dropped,  held,  if  the  life  had  dropped 
the  next  day  after  the  report  of  B.'s  being 
the  best  purchaser  was  made  absolute,  the 
purchase  must  have  stood ;  and  as  from 
that  time  the  life  was  wearing,  so  from 
that  time  the  purchaser  ought  to  pay 
interest.    Manning,  2  P.  Wms.  410. 


CHAP.    IV.]  INTEREST.  43 

a  term,  shall  not  pay  interest,  or  an  increased  price,  for  a  part  of 
the  terra  elapsing  before  the  purchase  is  completed,  unless  the 
delay  be  through  his  fault.^ 

10.  It  is  remarked  by  the  court  in  New  York,  that  the  general 
rule  in  England  is,  that,  from  the  time  fixed  for  completion  of  a 
sale  and  conveyance,  the  purchaser  is  entitled  to  the  profits,  and 
will  be  compelled  to  pay  interest.  The  latter  is  implied  from  the 
former.  This  rule  is  modified  here,  by  the  difference  in  the  situa- 
tion and  productiveness  of  real  estate,  and  the  higher  rate  of 
interest ;  and,  in  the  case  of  vacant  or  unproductive  property,  a 
contract  to  pay  interest  will  not  be  implied,  when  the  purchaser  is 
prevented  from  obtaining  his  title  through  the  default  or  negli- 
gence of  the  vendor,  notwithstanding  possession  by  the  vendee. 
So  where  he  does  not  go  into  possession  under  or  in  pursuance 
of  the  contract,  and  the  delay  in  its  completion  is  imputable  to  the 
seller.  Thus  the  plaintiff  and  defendant,  being  joint  owners  in 
possession  of  several  lots,  under  a  lease  which  contained  a  cove- 
nant for  a  sale  and  conveyance  to  the  lessees  at  their  option,  at 
a  fixed  price,  tendered  the  price  to  the  lessor's  heirs  and  repre- 
sentatives, and  demanded  the  title ;  but  the  latter,  by  reason  of 
infancy  and  other  causes,  were  long  unable  to  convey.  The  plain- 
tiff then  signed  an  agreement,  by  which  he  covenanted  to  execute 
a  perfect  conveyance  to  the  defendant  of  all  his  right  and  interest 
in  one  of  the  lots  (which  was  vacant),  on  the  1st  of  May,  1830, 
in  consideration  of  a  large  price  to  be  then  paid  or  secured  by  the 
defendant,  and,  when  the  legal  title  was  obtained,  he  would  give 
any  further  assurance,  &c.  The  plaintiff  made  no  effort  to  com- 
plete, or  to  convey  his  own  interest  to  the  defendant,  at  or  before 
the  day  fixed ;  and,  early  in  1831,  he  repudiated  the  agreement, 
denied  its  obligation,  and  disclaimed  the  defendant  as  being  the 
purchaser.  The  defendant  nevertheless  proceeded  and  erected  a 
valuable  store  on  the  lot,  the  income  from  which  exceeded  the 
whole  cost  of  both  store  and  lot ;  and  at  the  same  time  he  made 
similar  erections  on  the  joint  account  on  the  other  lots  of  himself 
and  the  plaintiff.  In  183(3,  the  plaintiff  filed  a  bill,  amongst  other 
things,  calling  on  the  defendant  to  complete  the  purchase  of  the 
lot ;  and  a  conveyance  was  finally  in  readiness  for  the  defendant  in 
1841.     Held,  that  the  defendant  did  not  take  possession  under 

1  Growsock  v.  Smith,  3  Anstr.  877. 


44  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.   IV. 

his  contract  with  the  plaintiff,  and  the  character  of  his  previous 
possessiQn  was  not  changed  ;  that  the  plaintiff  was  not  entitled  to 
interest  on  the  stipulated  price  from  May  1,  1830,  nor  until  he 
made  or  offered  a  full  conveyance  of  his  right  and  title  in  the  lot ; 
but  he  was  entitled  to  the  value  of  the  rents  in  the  intervening 
period,  as  the  same  would  have  been  derived  from  the  lot,  in  the 
condition  in  which  it  was  when  he  contracted  to  sell  to  the  defend- 
ant. The  Court  say :  "  In  the  case  of  a  vacant  city  lot,  or  of 
wild  land,  not  bought  for  immediate  improvement  or  cultivation, 
and  where  there  is  no  express  contract  for  interest,  it  would  be 
repugnant  to  the  moral  sense  to  compel  the  purchaser  to  pay  in- 
terest on  the  price,  when,  through  the  default  or  negligence  of  the 
vendor,  he  had  not  received  a  conveyance,  and  thus  had  been  pre- 
vented for  years  from  disposing  of  the  property.  Nor  would  the 
fact  that  the  former  had  taken  all  the  possession  that  he  could  of 
such  property,  and  had  not  kept  the  money  by  him  all  the  time 
in  order  to  pay  it  on  receiving  the  title,  affect  the  natural  equity 
of  the  case.  Yet  by  the  modern  English  rule  he  would  be 
charged  with  interest  under  such  circumstances."  ^ 

11.  The  purchaser  may  under  some  circumstances  make  a 
claim  for  interest.  Upon  this  point,  the  distinctions  are  nice,  and 
the  cases  not  wholly  reconcilable. 

12.  Thus,  where  the  sale  is  made  in  payment  of  a  debt,  the 
vendor  must  pay  interest  from  the  time  the  debt  is  liquidated 
until  he  makes  a  good  title ;  and  the  vendee  is  accountable  for 
the  rents  and  profits  from  the  time  the  title  is  perfected  until 
the  contract  is  specifically  performed.^  So,  the  agreement  not 
being  completed  within  the  time  specified,  the  purchaser  shall  be 
allowed  interest  for  such  time  as  the  purchase-money  has  been 
kept  dead  for  this  special  purpose.^  But,  on  the  other  hand,  it  has 
been  held,  that  a  purchaser  out  of  possession  cannot  claim  interest 
on  the  purchase-money,  though  he  has  laid  it  aside  till  the  vendor 
should  show  a  good  title,  and  it  has  thereby  become  unproductive.* 
So,  also,  that  a  party  recovering  back  a  deposit  paid  on  the  pur- 
chase of  real  property  is  not  entitled  to  interest.^  So  if  the  con- 
tract is  rescinded,  but  not  for  fraud,  the  purchaser  having  paid  the 

1  Stevenson  v.  Maxwell,  2  Sandf.  Ch.  *  De  Vesme  v.  De  Vesme,  13  Jur. 
273,  278.  1037.     But  see  Dart  on  V.  &  P.  294. 

2  Hepburn  v.  Dunlap,  1  Wheat.  179.  5  Bradshaw  v.  Bennett,  5  Carr.  &  P. 

3  Howland  v.  Norris,  1  Cox,  59.  48. 


CHAP.    IV.]  INTEREST.  45 

price,  and  taken  possession  ;  the  use  of  the  money  and  that  of  the 
land  are  held  to  balance  each  other;  and  the  decree  should  in 
general  restore  the  money  without  interest,  and  the  land  without 
rents  and  profits.  But,  either  in  case  of  valuable  and  permanent 
improvements  by  the  purchaser,  or  deterioration  of  the  property 
through  his  default,  a  valuation,  account,  and  settlement  shall  be 
made  accordingly .^ 

13.  Upon  a  bill  by  a  purchaser,  for  specific  performance ;  the 
vendor,  for  fifteen  years,  having  retained  possession  of  the  whole 
estate,  and  of  one-third  of  the  purchase-money  ;  held,  he  should 
be  charged  with  interest  on  one-third  of  the  rents  and  profits. ^ 

14.  In  a  late  American  case,  it  is  said,^  with  reference  to  a 
case  of  fraud ;  the  taking  of  the  money  being  wrong  and  fraudulent 
in  law,  the  law  will  grant  interest  upon  it  from  the  time  it  is  so 
taken.  It  seems  to  me  more  just  and  equal  for  the  parties,  that 
in  all  cases  of  rescinded  contracts,  interest  must  be  allowed  on  the 
money  paid,  from  the  time  of  payment  till  the  judgment ;  and,  on 
the  other  hand,  the  party  occupying  the  land  be  charged  with 
rents  and  profits  during  the  possession,  deducting  taxes  and  the 
cost  of  any  permanent  improvements  made.  Because  in  some 
cases  the  rents  are  little  or  nothing,  and  in  others  more  than  the 
interest.  A  purchaser  out  of  possession  is  entitled  to  interest  on 
his  deposit,  and  to  costs  at  law  and  in  equity,  until  the  vendor  has 
made  his  title  good ;  though  the  vendor  is  entitled  to  subsequent 
costs,  and  may  enforce  the  contract,  if  his  title  be  good  when  the 
report  is  made. 

15.  Where  an  auctioneer,  as  agent  for  the  vendor,  agrees  to  sell 
according  to  the  conditions,  by  which  the  purchaser  is  to  pay  down 
immediately  a  deposit,  and  the  auction-duty,  and  the  residue  of 
the  purchase-money  upon  a  day  certain,  on  having  a  good  title, 
and  the  vendor  is  to  prepare  and  deliver  an  abstract ;  the  auc- 
tioneer is  not,  upon  a  failure  of  the  contract,  in  consequence  of  a 
defective  title,  personally  responsible  for  interest  upon  the  deposit 
and  auction-duty,  unless  the  money  be  demanded,  or  notice  given 
to  him  that  the  contract  has  been  rescinded.'*  So  an  auctioneer, 
who  receives  a  deposit  from  the  purchaser,  is  a  mere  stakeholder, 
liable  to  pay  the  money  at  any  time ;  and  therefore,  although  he 

1  Williams  v.  Rogers,"2  Dana,  375.  •*  Per  Woodbury,  J.,  Doggett  v.  Em- 

2  Burton  v.   Todd ;    Todd  v.   Gee,   1     erson,  1  Woodb.  &  M.  195. 

Swanst.  255.  ■*  Gaby  v.  Driver,  2  You.  &  Jerv.  549. 


46 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IV. 


place  the  money  in  the  funds  at  interest,  he  is  not  liable  to  pay 
such  interest  to  the  vendor  when  the  purchase  is  completed ; 
though  the  vendor  (without  the  concurrence  of  the  vendee)  gave 
him  notice  to  invest  the  money  in  government  securities.^  So 
where  a  purchaser  of  an  estate  by  auction  deposited  a  sum  with 
the  auctioneer,  as  part  of  the  purchase-money,  until  he  should 
receive  a  good  title,  according  to  the  conditions  of  sale ;  and  no 
good  title  was  made  out ;  but  the  treaty  was  kept  open  with  the 
auctioneer  for  four  years,  and  no  demand  made  on  him  for  the 
deposit:  held,  the  auctioneer  was  not  liable  for  interest.^  But 
where  a  vendor  filed  a  bill  for  specific  performance,  but,  not  being 
able  to  make  a  good  title,  his  bill  was  dismissed ;  held,  he  should 
return  the  deposit  with  interest.^  So  where  a  vendor  omits  to 
make  out  a  good  title  within  the  stipulated  time,  and  the  vendee 
dies ;  his  executor  may  sue  for  loss  of  interest  on  the  deposit- 
money,  and  the  expense  of  investigating  the  title.*(a) 

15  a.  "Where  payments  have  been  made  by  a  vendee,  at  different 
times,  all  exceeding  the  interest  then  due,  and  the  decree,  in  a 
suit  by  the  vendor  for  a  specific  performance,  directs  an  account 


1  Harrington  v.  Hoggart,  1  Barn.  & 
Adolph.  577. 

2  Lee  V.  Mumi,  8  Taunt.  45;  1  Moore, 
481. 

(a)  The  plaintiffs,  purchasers  of  mines, 
having  paid  part  of  tlie  purchase-money, 
and  been  let  into  possession,  agreed  to  pay 
the  residue  by  instalments,  and  in  the 
mean  time  half-yearly  interest  on  what 
should  remain  due.  Having  paid  one- 
half  year's  interest,  but  no  portion  of  the 
remaining  purchase-money,  they  filed 
their  bill  to  set  aside  the  contract.  The 
vendor  then  recovered  the  next  four  half- 
yearly  portions  of  interest  by  several  suc- 
cessive actions,  but,  upon  bringing  his 
action  for  the  fifth,  was  restrained  by  an 
order  for  an  injunction  in  this  suit.  The 
terms  of  that  order,  dated  the  28th  of 
February,  1829,  were,  that,  upon  the 
plaintiffs'  paying  into  Court  the  sum 
which  was  the  subject  of  that  action,  the 
defendant  should  be  restrained,  &c.,  and 
that,  upon  their  continuing  from  time  to 
time  to  pay  in  the  like  sums  half-yearly, 
the  injunction  should  be  continued  to  the 
liearing.  Under  that  order,  several  half- 
yearly  instalments  of  interest  were  paid 
in,  and  invested,  and  made  to  accumulate 
in  the  funds  ;  but  under  two  subsequent 
orders,  made  at  the  instance  of  tlie  de- 
fendant,  for   the    purpose    of   enlarging 


3  Anson  v.  Hodges,  5  Sim.  227. 

*  Orme  v.  Broughton,  10  Bing.  533. 


publication,  all  further  payments  into 
Court  were  suspended  until  the  hearing. 
The  cause  was  heard  in  November,  1881 ; 
and,  in  the  following  November,  judgment 
was  given  in  favor  of  the  plaintiffs  ;  under 
which  the  accumulated  stock  was  sold 
out,  and  paid  to  them,  and  the  defendant 
was  compelled  to  pay  ^9,766  for  costs. 
In  Marcli,  1838,  the  House  of  Lords  re- 
versed this  decree,  and  remitted  the 
cause  to  the  Court  below,  to  do  therein  as 
should  be  just,  and  consistent  with  their 
reversal.  Held,  1st,  that  the  defendant 
was  entitled  to  be  repaid  the  sum  of 
.£9,766,  but  without  interest. 

2d.  That  as  to  the  instalments  of  in- 
terest, which  became  due  on  the  unpaid 
purchase-money,  after  the  decree  in  the 
Court  below,  the  defendant  had  no  reme- 
dy in  this  suit,  but  must  be  left  to  his 
remedy  at  law. 

3d.  That  the  defendant  was  entitled  to 
be  repaid  in  this  suit  the  instalments  of 
interest,  which  became  due  between  the 
orders  for  suspension  and  the  decree  of 
the  Court  below,  but  that  he  was  not 
entitled  to  interest  on  those  instalments. 
SmaU  V.  Attwood,  3  Y.  &  Coll.  105. 


CHAP.    IV.]  INTEREST.  47 

of  what  is  due  for  principal  and  interest,  rests  shall  be  made.^  So 
where  a  sale  is  avoided,  the  purchase-money  for  which  was  secured 
by  an  instrument  bearing  interest,  and  interest  had  been  paid 
thereon ;  such  payments  are  to  be  considered  as  principal,  and  are 
to  be  refunded  with  interest.^  So,  a  purchase  being  set  aside  for 
fraud,  and  the  purchaser  decreed  to  pay  an  occupation  rent, 
receiving  back  his  purchase-money  with  interest ;  there  being 
a  considerable  excess  of  the  rent  above  the  interest ;  annual  rents 
were  directed  to  be  made  in  the  accounts,  until  the  excess  should 
liquidate  the  principal.^ 

15  h.  In  case  of  a  suit  for  the  price,  interest  being  allowed  from 
the  time  of  purchase  by  the  jury,  it  is  presumed  that  they  gave 
interest  on  a  counter-claim  for  fraudulent  representation  as  to 
quality  and  location.^ 

16.  The  question  of  usury  sometimes  arises,  in  connection  with 
the  price  of  lands  sold.  Thus  an  agreement  to  purchase  houses 
for  i431  10s.,  possession  to  be  given  and  £200  paid  immediately, 
the  rest,  with  interest,  at  Michaelmas,  but,  if  not  then  paid,  the 
purchaser  to  pay  "  in  lieu  of  interest  upon  the  same  a  clear  rent 
of  X42  per  annum,"  out  of  which  was  to  be  deducted  interest  for 
the  X200  paid;  was  held  not  usurious.^  So  where  there  was  a 
sale  of  an  estate  at  a  certain  price,  to  be  paid  by  instalments,  with 
interest,  at  6  per  cent ;  and  notes  were  given  for  these  sums, 
compounded  of  the  instalments,  and  that  which  was  called  interest ; 
held,  the  whole  must  be  considered  as  purchase-money,  and  the 
bargain  was  not  usurious.^ 

17.  Questions  sometimes  arise,  as  to  an  order  for,  and  the 
effect  of,  a  payment  of  the  purchase-money  of  lands  iyito  Court, 
and  a  claim  of  interest  thereupon. 

18.  It  is  said,  purchase-money  paid  into  Court  is  tlie  property 
of  the  vendor.'^ 

19.  Generally,  a  purchaser  shall  not  retain  possession  and  also 
keep  his  purchase-money.  But  where  he  was  willing  to  give  up 
possession,  and  it  was  a  question,  whether  there  was  or  not  a  sub- 

1  Griffith  V.  Heaton,  1  Sim.  &  Stu.  5  Spurrier  v.  Mayoss,  1  Ves.  527;  4 
271.  Bro.  C  C.  28. 

2  Murray  v.  Palmer,  2  Sch.  &  Lef.  ^  Beete  v.  Bidcrood,  7  Barn.  &  Cress. 
488.  453  ;  1  Mann.  &  Gran.  8'J4. 

3  Donovan  v.  Fricker,  Jac.  165.  ^  Gell  v.  Watson,  2  Sim.  &  Stu.  402. 

4  M'NaUy  v.  Shobe,  22  Iowa,  49. 


48  LAW  OF  VENDORS  AND  PUECHASERS.      [CHAP.  IV. 

sistiiig  contract,  the  Lord  Chancellor  refused  to  order  payment  of 
the  purchase-money  into  Court. ^ 

20.  Payment  to  the  solicitor  for  all  parties  in  the  suit  is  equiv- 
alent to  payment  into  Court,^ 

21.  Where  a  contract  is  cancelled  by  decree  in  Chancery  for 
fraud  of  a  party,  a  decree  that  he  shall  repay  what  he  has  received 
under  it,  with  interest  until  paid,  is  proper.^ 

22.  A  purchaser,  complaining  that  his  conveyance  did  not  com- 
prise the  whole  of  the  property  which  he  had  contracted  for,  filed 
his  hill  for  a  conveyance  of  the  remainder,  and  obtained  an  injunc- 
tion against  any  suit  for  the  purchase-money,  part  of  which  was 
afterwards  ordered  to  be  paid  into  Court,  to  abide  the  event  of  the 
suit.  The  bill  being  dismissed  ;  held,  the  vendor  was  entitled  to 
the  residue  of  the  purchase-money,  and  the  interest  upon  it,  to  the 
time  of  payment,  although  the  purchase-money  in  Court  had  not 
been  laid  out,  and  no  interest  accrued  thereon.* 

23.  The  amount  of  damages  to  be  awarded  between  vendor  and 
vendee  may  be  affected  by  the  value  of  improvements  made  by  the 
party  in  possession  under  the  contract ;  which  amount  shall  be 
deducted  from  the  rents  and  profits.^  Thus  a  vendee  in  possession 
under  a  title-bond,  obtaining  judgment  on  the  bond  against  the 
vendor  for  failure  to  convey,  is  liable  for  rents  and  profits,  and 
entitled  to  payment  for  lasting  and  valuable  improvements.'^  So, 
where  a  sale  is  within  the  Statute  of  Frauds,  the  improvements  by 
the  purchaser  must  be  paid  for  before  possession  is  given,  deduct- 
ing rent,  k.^."' 

24.  If  a  vendee  receive  payment  for  improvements  on  eviction, 
and  afterwards  the  vendor  establish  his  title  to  be  paramount,  the 
vendee  may  be  compelled  to  refund  to  the  evictor.  On  the  other 
hand,  if  the  vendor,  on  the  eviction  of  the  vendee,  has  refunded 
the  consideration  and  interest,  the  vendee  is  responsible  for  rents, 
but  must  be  paid  for  permanent  and  valuable  improvements.^  So 
one  who  is  permitted  to  enjoy  an  estate,  and  makes  improvements 
during  his  occupancy,  is  in  equity  entitled  to  remuneration  for  the 

1  Morgan  v.  Shaw,  2  Mer.  138.  170 ;  Ace.  Stedwell  v.  Anderson,  21  Conn. 

'^  Price  V.  North,  2  Y.  &  Coll.  620.  139. 

3  Perkins  v.  Rice,  Litt.  Sel.  218.  7  M'Cracken  v.  Sanders,  4  Bibb,  511. 

4  Humphries  v.  Horn,  8  Hare,  276.  8  Morton  v.  Ridgeway,  3  J.  J.  Marsh. 

5  See  Watts  v.  Waddle,  6  Pet.  389.  257. 
^  Funk  V.  M'Keoun,  4  J.  J.  Marsh. 


CHAP.    IV.]  INTEREST.  49 

improvements.  And  a  purchaser  from  him  is  also  entitled  to  have 
his  improvements  sot  off  against  the  rents.^  So  on  setting  aside 
a  sheriff's  sale  of  lands,  and  ordering  possession  to  l)e  restored, 
the  purchaser  should  account  for  rents  from  the  time  he  took  pos- 
session, to  be  reduced  from  improvements.^  So  where  a  title  is 
fraudulent,  equity,  in  giving  relief,  will  re-imburse  the  party  in  pos- 
session, for  permanent  improvements.^ 

25.  It  has  been  held,  that  a  purchaser,  evicted  or  released  by 
the  vendor  for  defective  title,  shall  be  re-imbursed  for  actual  im- 
provements, although  he  purchased  with  notice  of  a  doubtful  title. 
The  Court  remark :  "  The  objections  made  were,  that  the  purchaser 
knew,  at  the  time  of  the  purchase,  there  was  a  doubt  about  the 
title,  and  therefore  ought  not  to  have  made  any  improvements ; 
and  that  the  improvements  were  chiefly  ornamental,  and  not  sub- 
stantial and  permanent.  The  first  objection  goes  rather  to  any 
re-imbursement  at  all,  even  for  the  price  paid.  That  objection 
turns  upon  the  ground,  that  if  the  purchaser,  before  executing  the 
articles,  knew  that  there  was  a  defect  of  title,  or  incumbrances,  he 
shall  be  considered  as  having  entered  into  the  contract  with  his 
eyes  open,  and  has  chosen  his  remedy  at  law,  and  equity  will  not 
assist  him,  but  leave  him  to  his  remedy  at  law.  But  that  point 
cannot  now  be  made  here,  for  it  is  agreed  that  the  purchase  ought 
to  be  and  shall  be  rescinded,  and  that  the  purchase-money  shall  be 
restored,  but  without  interest,  as  tlie  occupancy  was  equivalent  to 
the  interest ;  and  this  agreement  seems  best  to  comport  with  jus- 
tice ;  for  there  are  very  few  cases  in  which  the  Court  will  not,  upon 
a  defect  of  title,  assist  the  purchaser  to  recover  the  purchase-money, 
and  also  money  laid  out  in  lasting  improvements.  Where,  indeed, 
the  defect  was  notorious,  and  the  purchaser  bought  on  a  specu- 
lation, and  obtained  the  property  at  a  price  far  below  the  value,  on 
account  of  the  known  defect,  it  seems  reasonable  that  he  shall  not 
afterwards  claim  a  re-imbursement  even  of  the  purchase-money. 
But  nothing  of  that  kind  appears  to  have  existed  here.  It  is  not 
pretended  that  the  defect  was  notorious,  and  that  the  property  was 
obtained  below  the  value  on  account  of  that  defect,  and  on  account 
of  his  running  the  risk  of  the  title."  It  being  objected  that  the 
improvements  were  merely  ornamental,  the  Court  further  ordered, 
that  it  be  "  referred  to  the  Master  to  examine  and  report  what  were 

1  Thompson  v.  Mason,  4  Bibb.  195.  3  ghine  v.  Gough,  1  Ball  &  B.  444. 

2  Searcy  v.  Eeardon,  1  A.  K.  Marsh.  2. 

4 


50  LAW  OP  VENDORS  AND  PURCHASERS.      [CHAP.  IV. 

the  expenditures  for  the  usual  improvements  in  question,  making 
deductions  for  the  deterioration  of  the  buildings  during  the  occu- 
pancy of  the  party  who  made  the  improvements,  and  down  to  the 
time  of  the  rescission  of  the  contract."  The  Master  afterwards 
made  a  report  in  favor  of  the  complainants,  which  was  con- 
firmed.i 

1  Witherspoon  v.  Anderson,  3  Desaus.  245,  246, 


CHAP,    v.] 


PARTIES   TO   CONTRACTS. 


51 


CHAPTER    V. 


PARTIES   TO    CONTRACTS. 


1.     Necessity  of  parties ;  uncertainty,  &:c. 

5.  Joint  parties. 

6.  Particular  tenants ;  in  tail,  for  life,  &c. 
13.     Husband  and  wife. 

19.     Representatives  of  a  party  deceased; 
heirs;  infants. 


34.  Trustees  and  cestuis  que  trust. 

35.  Aliens. 

36.  Agents;  their  authority,  —  it  may  be 
verbal;  construction  of  written  powers,  &c.; 
form  of  the  contract  ;  whether  it  binds  the 
agent  or  the  principal. 


1.  To  render  valid  a  contract  for  the  sale  and  pnrchase  of  lands, 
as  in  other  contracts,  there  must  be  legally  existing  parties.  It  is 
not  necessary  that  the  parties  should  be  expressly  named.  But, 
if  there  is  nothing  in  the  instrument  itself,  nor  in  the  nature  of 
the  transaction,  which  shows  who  are  the  parties,  the  contract  is 
void  for  uncertainty.^ 

2.  In  some  cases,  however,  the  party,  to  whom  final  conveyance 
is  to  be  made,  need  not  be  at  the  time  distinctly  ascertained. 
Thus,, a  bond  to  convey  lands  to  a  board  not  in  esse,  for  public 
purposes,  in  consideration  of  the  location  of  a  county  seat  of  jus- 
tice, is  not  void  by  reason  of  the  want  of  a  grantee. (a) 

3.  It  is  not  always  necessary  that  the  party  binding  himself  by  a 
contract  should  himself  receive  the  consideration  of  such  contract.  (6) 

■    1  Webster  v.  Ela,  5  N.H.  540. 


(a)  A  statute,  creating  a  county,  ap- 
pointed commissioners  to  locate  the  seat 
of  justice,  in  May,  182G,  to  receive  dona- 
tions in  land,  and  to  take  bonds  of  persons 
proposing  to  give  lands,  payable  to  a  board 
of  justices  (vvliose  appointment  was  not  to 
take  effect  until  June),  and  tlieir  succes- 
sors in  office,  which  bonds  the  commis- 
sioners were  required,  by  law,  to  deliver 
to  the  board  of  justices.  A  party,  propos- 
ing to  give  lands,  delivered  to  tlie  com- 
missioners a  bond  from  himself  to  the 
board  of  justices  to  be  thereafter  organized, 
and  their  successors  in  office,  for  the  con- 
veyance of  the  lands,  which  bond  was 
delivered  bj'^  the  commissioners  to  the 
justices.  Held,  the  bond  was  not  void, 
for  want  of  obligees  in  existence  at  the 
time  of  its  delivery  to  the  commissioners, 


but  was  evidence  in  defence  of  an  action 
of  ejectment,  brought  by  the  heirs  of  the 
obligor,  against  a  party  who  occupied  the 
land  twenty  years  under  a  title  derived 
from  the  board  of  justices.  Sargeant's, 
&c.,  V.  State  Bank,  &c.,  12  How.  371. 

(b)  A.  purchased  land  of  B.,  and  agreed 
to  pay  off  the  note  which  B.  had  given, 
and  secured  by  a  mortgage  upon  the  land. 
C.  paid  and  took  up  the  note,  and  sued 
A.  upon  his  promise  made  to  B.  Held, 
he  could  not  recover,  for  want  of  privity 
and  consideration.  Page  v.  Becker,  31 
Mis.  466. 

As  an  inducement  to  the  sale,  by  a  son, 
of  land  charged  with  the  support  of  the 
father,  the  latter  agreed  in  writing  to  ac- 
cept a  specific  sum,  which  the  i)urchaser 
agreed,  in  writing,  with  the  son  to  pay. 


52  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

But,  in  general,  a  party  is  not  bound  by  an  agreement  relating  to 
lands,  where  the  consideration  is  past,  more  especially  if  another 
person  had  the  benefit  of  such  consideration,  or  if  the  contract  is 
an  uneqiial  and  unreasonable  one.  Thus,  a  declaration  alleged, 
that  a  surveyor,  in  consideration  of  a  sum  paid  him  by  the  plaintiff, 
promised  to  furnish  a  land-warrant,  and  enter  and  survey  for  the 
plaintiff  a  piece  of  vacant  land,  in  order  that  the  plaintiff  might 
obtain  a  grant  thereof ;  that  he  wholly  failed  to  make  the  entry ; 
and  that  the  defendant,  his  successor,  in  consideration  of  the  prom- 
ises of  his  predecessor,  and  the  payment  made  to  him  by  the 
plaintiff,  and  being  required  by  the  plaintiff  to  enter  the  land  for 
him,  agreed  to  furnish  the  necessary  warrant,  and  enter  it  in  the 
plaintiff's  name  in  his  office,  and  seasonably  survey  it,  so  that  the 
plaintiff  might  obtain  a  grant ;  and  that  the  plaintiff  agreed  to  pay 
the  defendant  his  fees  for  the  survey.  That  the  defendant  failed 
to  furnish  a  warrant  and  enter  the  land  for  and  in  the  name  of  the 
plaintiff,  but  entered  and  surveyed  it  for  another  person,  who  had 
received  a  patent  therefor.  Held,  as  a  count  in  assumpsit  upon  a 
special  contract,  the  declaration  set  forth  no  sufficient  consideration 
between  the  parties ;  and,  as  a  count  in  case,  it  set  forth  no  such 
official  misbehavior  or  neglect  as  furnished  a  ground  of  action.^ 

4.  Where  a  vendee  assigns  the  contract,  and  the  assignee  takes 
possession,  the  vendor,  though  he  cannot  compel  the  assignee  to 
pay  the  purchase-money,  may,  by  virtue  of  his  lien  on  the  land, 
call  on  him  to  pay  the  money,  or  to  surrender  the  land,  or  to  have 
it  sold  for  the  benefit  of  the  vendor.  And  where  the  administrators 
of  the  vendee  assigned  a  contract  for  the  purchase  of  land  to  the 
defendants,  who  covenanted  and  agreed  to  take  up  and  cancel  the 
contract,  and  to  indemnify  and  save  harmless  the  administrators 
from  all  damages,  &c.,  which  they  might  sustain  by  reason  of  the 
contract,  &c. ;  held,  that  the  administrators  were  entitled  to  specific 
performance  of  the  covenants,  and  a  want  of  assets  could  not  be 
objected,  in  limine,  to  the  relief  sought.2(a) 

1  Hale  V.  Crow,  9  Gratt.  263.  ^  Champion  v.  Brown,  6  Johns.   Ch. 

398. 

Held,  although  this  last  agreement  was  (a)  On  the  other  hand,  where  a  ven- 

not  in  terms  a  contract  with  the  fatlier,  dor,  by  bond,  assigns  a  note,  received  in 

yet  it  was  for  his  benefit,  and  could  have  payment,   and   agrees   that  the   assignee 

been  enforced  by  him,  and  constituted  a  sliall  be  substituted  to  the  benefit  of  all 

good  consideration  for  the  release  of  the  security  held  by  him ;  the  assignee  suc- 

contract  for  maintenance.     Woodberry  v.  ceeds  to  his  rights,  and  may  file  a  bill  in 

Duvall,  15  lud.  164.                          '  his  own  name,  against  the  vendee,  and  all 


CHAP,    v.] 


PARTIES   TO   CONTRACTS. 


53 


5.  Contracts  for  the  sale  of  lands  may  involve  the  rights  and 
obligations  of  parties  jointly  interested. (a)  Thus  all  the  parties, 
bound  by  an  executory  contract  to  make  titles,  must  join  in  the 
deed,  in  order  to  a  complete  performance.  But  all  will  be  dis- 
charged by  the  acceptance,  on  the  part  of  the  vendee,  of  something 
in  satisfaction  of  the  obligation,  and  in  place  of  strict  performance, 
from  one  alone.^  (5) 

1  Johnson  v.  Collins,  20  Ala.  435.  But  see  Coe  v.  Harralian,  Mass.  S.J.C.  Suffolk, 
March,  1857. 


persons  claiming  under  him,  with  notice, 
for  a  foreclosure  and  sale.  The  vendee 
is  to  be  regarded  as  a  mortgagor  ;  and  lie 
and  those  claiming  under  him,  with  notice, 
cannot  object  that  the  complainant  is  a 
mere  assignee,  and  that  the  relation  of 
vendor  and  vendee  does  not  exist  between 
them.     Blair  v.  Marsh,  8  Clarke,  144. 

(a)  In  a  suit  to  subject  to  sale  a  contract 
for  the  sale  and  purchase  of  land,  held  as 
collateral  security  for  promissory  notes ; 
the  owner  of  the  legal  title  is  not  a  neces- 
sary party -defendant.  Vaughn  v.  Cushing, 
23  Ind.  184. 

[h]  Two  parties,  each  claiming  title  to 
the  same  land,  derived  from  distinct 
sources,  but  neither  of  which  could  be 
perfected  without  a  confirmation  from  the 
government,  entered  into  a  written  and 
sealed  agreement,  fully  reciting  their  re- 
spective claims,  and  providing  that  they 
should  share  equalh'  if  the  title  were  con- 
firmed ;  if  not,  in  the  money  awarded  by 
government,  in  lieu  thereof.  The  title 
was  confirmed,  and  a  title  granted  to  the 
defendant,  one  of  the  parties,  in  his  own 
name.  Tlie  other  having  in  the  mean 
time  died,  his  heirs  tile  a  bill  for  specific 
performance.  Held,  as  the  agreement 
fully  recited  the  respective  interests  of  the 
parties,  the  defendant  could  not  set  up  in 
defence  an  inequality  of  interest  at  that 
time.     Hunt  v.  Thorn,  2  Mich.  213. 

Where  one  holding  an  agreement  for  a 
conveyance  sells  his  right  to  part  of  the 
premises,  the  purchaser  cannot,  at  law, 
divide  the  contract,  and  compel  a  convey- 
ance in  separate  parcels ;  nor  in  equity, 
except  in  special  cases,  where  it  is  neces- 
sary to  protect  an  innocent  purcliaser  from 
an  intended  fraud.  Stone  v.  Pratt,  25  111. 
25. 

Bill  for  specific  performance.  By  a 
written  contract,  the  defendant  agreed  to 
repair  the  plaintiff's  mill,  building  fences, 
&c.,  and  tlie  plaintiff  to  sell  to  the  defend- 
ant, on  completion  of  such  repairs,  one 
undivided  moiety  of  tlie  premises.  It  was 
further  agreed,   that   the  parties   sliould 


then  form  a  partnership,  to  work  the  mill 
for  a  year,  when,  if  the  plaintiff  shoidd 
elect  to  withdraw,  the  defendant  should 
pay  him  a  certain  sum  for  tlie  premises ; 
otherwise,  the  partnership  to  continue  for 
five  years.  Held,  not  to  be  a  case  for 
specific  performance.  Reed  v.  Vidal,  5 
llich.  Eq.  289. 

A.  left  property  to  his  children,  and,  at 
the  death  of  any  of  them  without  issue, 
the  share  of  that  one  was  to  be  divided 
among  the  rest.  In  consideration  of  love 
and  affection,  a  contract  was  signed,'  by 
which  the  interests  of  all  the  others  under 
this  clause  were  agreed  to  be  released  so 
far  as  regarded  the  shares  of  two  of  the 
devisees.  Held,  the  execution  of  tliis  con- 
tract by  one  of  the  covenantors,  by  filing 
a  disclaimer,  would  bind  tlie  rest,  even  if 
they  would  not  be  otherwise  bound.  Nun- 
nally  v.  White,  3  Met.  (Ky.),  584. 

A.  bound  lumself  to  convey  to  B.  and 
C.  one  undivided  half  of  certain  lands,  as 
soon  as  payment  shall  have  been  made  as 
agreed  on,  or  so  soon  thereafter  as  D.  and 
E.,  parties  of  the  second  part,  may  request 
it  to  be  done.  D.  and  E.  agreed  to  pay 
to  A.  one  undivided  lialf  of  the  amount 
paid  for  the  property,  and  expended  in 
improvements  made  or  to  be  made  there- 
on. The  title  to  part  of  the  property  to 
remain  in  A.  so  long  as  the  parties  might 
agree,  and  the  lot  to  be  sold  for  the  benefit 
of  all  the  parties  ;  the  profits  to  be  divided, 
one-half  to  A.  and  one-quarter  each  to 
B.  and  C.  In  case  a  division  should  be 
required,  then  A.  agrees  to  make  a  deed 
to  each  party  of  his  pro])ortion  of  tlie  lots 
remaining  unsold ;  the  division  to  be  made 
in  an  equitable  manner  as  might  be  agreed 
on.  Held,  under  this  contract  the  parties 
were  joint  owners,  and  not  partners. 
Munson  v.  Sears,  12  Iowa,  172. 

Agreement  under  seal,  between  the 
plaintiffs,  husband  and  wife,  and  the  de- 
fendant and  five  other  persons,  interested 
in  certain  real  projicrty,  tliat  "  tlie  said 
parties,  namely  [tlie  plaintiffs |,  on  the  one 
side,  and  [tlie  defendant  and  the  other  five 


54 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  V. 


6.  In  this  connection  may  be  considered  some  miscellaneous 
points,  connected  with  the  respective  rights  and  duties  oi  particular 
tenants^  as  growing  out  of  the  sale  and  purchase  of  lands. 

7.  A  tenant  in  tail  is  bound  by  his  agreement  to  convey.  But 
the  issue  in  tail  is  not  bound.^  So  though  a  decree  be  made 
against  tenant  in  tail,  who  had  agreed  to  sell  his  estate,  and  he 
stands  out  all  process  of  contempt  for  not  obeying  it,  yet  his  issue 
are  not  bound  by  it.^  The  ground  of  these  decisions  is  said  to  be, 
that  the  issue  in  tail  claim  joer  formam  doni,  from  the  creator  or 
author  of  the  estate  tail,  not  from  the  tenant  in  tail,  who  under- 
takes to  bind  them.-^ 

8.  If  a  tenant  for  life,  with  a  leasing  power,  agrees  to  make  a 
lease  pursuant  to  the  power ;  this  agreement  shall  bind  the 
remainder-man.* 

9.  Where,  by  the  terms  of  a  devise  or  settlement,  the  consent  of 
the  tenant  for  life  is  necessary  to  a  sale  by  the  trustees,  upon  a 
bill  filed  by  them  to  enforce  a  sale,  they  must  prove  the  requisite 
consent  before  the  filing  of  the  bill,  not  merely  before  the  hearing, 
in  order  to  obtain  an  immediate  decree  at  the  hearing.^ 


1  Ross  V.  Ross,  1  Cha.  Ca.  171. 

2  Powell  V.  Powell,  Prec.  Cha.  278. 

3  1  Sugd.  264. 


*  Shannon  v.  Bradstreet,   1   Scho. 
Lef.  52. 

5  Adams  v.  Broke,  1  Y.  &  Coll.  627. 


persons]  on  the  other,  shall,"  at  a  time  and 
place  to  be  appointed,  "bid  against  each 
otlier  for  the  right  to  take  said  estate,  and 
thereupon  said  party  obtaining  the  right 
to  take  the  same  shall  receive  a  convey- 
ance of  the  interest  of  the  other  party 
therein,  and  shall  pay  tlierefor  to  the  other 
party  the  appraised  value  of  the  interest 
so  conveyed,  together  with  the  sums  bid 
for  the  right  of  taking  said  estate,  in  cash, 
upon  the  delivery  of  the  deed."  The 
plaintiffs  bring  an  action  upon  this  agree- 
ment against  the  defendant  alone,  alleging 
that,  at  the  time  and  place  appointed,  "  the 
parties  to  said  agreement  bid  against  each 
other  as  aforesaid,  and  [the  defendant]  did 
bid  for  said  right"  a  certain  simi,  " being 
the  highest  sum  bid  therefor,  and  there- 
upon became  entitled  to  take  the  interest 
of  the  plaintiffs  therein,  and  became  bound 
to  take  the  same  and  to  pay  thei'efor  the 
amount  of  said  appraisal  and  of  said  bid ; 
and  afterwards  the  plaintiffs  executed  a 
deed  of  the  interest  of  said  female  plain- 
tiff therein,  and  tendered  the  same  to  the 
other  parties  to  said  agreement ;  yet  the 
defendant  wholly  refused  to  accept  the 
same  or  pay  the  consideration  thereof." 


Held,  on  demurrer,  the  action  could  not 
be  maintained.  Shaw,  C.J.,  says  :  "  The 
result "  of  the  terms  of  the  agreement  is, 
"  that  the  party  owning  four-fifths  of  the 
estate  should  give  the  other  party,  for  his 
one-fifth,  more  than  the  appraised  value 
of  the  whole.  It  may  be  so,  and  the  party 
may  be  bound ;  but  if  so,  it  must  be  by 
force  of  strict  law,  and  cannot  be  aided  by 
equitable  considerations.  The  agreement 
exactly  defines  the  parties  who  are  to  bid 
against  each  other — the  plaintiffs  on  the 
one  side,  and  the  defendant  and  five  others 
on  the  other.  The  declaration  does  not 
aver  that  the  parties  bid,  but  that  the  de- 
fendant bid.  This  is  not  conformable  to 
the  contract.  If  the  defendant  bid  for  his 
party,  then  the  whole  were  purchasers, 
and  the  suit  should  have  been  against 
them  all.  But  the  averment  is,  not  only 
tliat  the  defendant  made  the  bid,  but  that 
he  became  bound,  and  the  plaintiffs  exe- 
cuted and  tendered  a  deed  to  him.  The 
thing  to  be  bid  for  and  conveyed  was  the 
interest  of  Pierce  and  wife  in  the  real 
estate ;  whereas  the  deed  was  of  tlie  in- 
terest of  the  female  plaintiff."  Pierce  v. 
Harrington,  1  Gray,  595. 


CHAP,    v.]  PARTIES   TO    CONTRACTS.  55 

10.  Specific  performance  of  a  sale  of  an  estate  in  fee  was  decreed, 
in  favor  of  a  vendor  who  at  the  time  of  the  contract  was  tenant  for 
life  only ;  the  purchaser  not  having  rejected  the  purchase  as  soon 
as  he  had  ascertained  the  real  interest  of  the  vendor,  and  the  ven- 
dor being  able,  by  means  of  the  consent  of  the  remainder-man,  to 
make  a  good  'primd  facie  title  to  the  fee-simple  at  the  hearing.^ 

11.  A  sale  under  a  decree,  all  necessary  parties  being  before  the 
Court,  will  not  be  set  aside  after  a  lapse  of  time,  though  the  sur- 
plus of  the  purchase-money  was  directed  to  be  paid  to  a  tenant 
for  life ;  there  being  no  surplus,  and  the  sale  appearing  to  be  prop- 
erly conducted. 2 

12.  Where  a  landlord,  or  lessor,  in  1781,  by  an  ejectment  for 
non-payment  of  rent,  entered  upon  the  possession  of  a  widow, 
tenant  for  life  of  a  lease  for  lives  renewable  for  ever,  remainder  to 
her  children,  infants ;  and  the  children,  in  1806,  long  after  they 
came  of  age,  and  after  the  lessor  had  been  in  undisputed  pos- 
session for  upwards  of  twenty-five  years,  filed  their  bill  for  relief: 
held  by  the  House  of  Lords,  reversing  a  decree  of  the  Irish  Court 
of  Exchequer,  that  there  was  no  ground  whatever  in  this  case 
for  interference  in  equity.^ 

13.  The  question  of  parties  sometimes  arises,  in  connection  with 
the  respective  rights  and  obligations  of  husband  and  wife. 

13  a.  Upon  this  subject  the  general  rule  is,  that  femes  covert 
cannot  bind  their  interest  in  lands,  except  in  the  precise  form  pre- 
scribed by  law.^  Therefore  an  agreement  by  a  feme  covert,  even 
with  the  assent  of  her  husband,  for  the  sale  of  her  real  estate,  is 
void,  and  cannot  be  enforced  in  Chancery  against  her.^  But  the 
husband  has  such  an  interest  in  lands  owned  in  fee  by  the  wife, 
that  he  can  give  a  lease  thereof  for  a  term  of  years,  which  will  be 
valid  during  the  coverture,  at  least ;  and  an  agreement  to  give 
such  a  lease,  if  not  otherwise  objectionable,  may  be  enforced  in  a 
Court  of  Chancery.*^  And  where  one  agrees  to  sell  land,  and  to 
execute  and  deliver  a  warranty  deed  thereof,  his  wife  must  join  in 
such  deed.^(a) 

1  Salisbury  v.  Hatcher,  2  Y.  &  Coll.  54.  5  Butler  v.  Buckingham,  5  Day,  492. 

2  Lightburne  v.  Swift,  2  Ball  &  B.  207.  6  Eaton  v.  Wliitaker,  18  Conn.  222. 

3  Baker  v.  Morgan,  2  Dow,  526.  '  Pomeroy  v.  Drury,  14  Barb.  418. 

4  Dunlap  V.  Mitchell,  10  Ohio,  117. 

(a)  Where  the  wife  was  not  party  to  performance.     Richmond  v.  Robinson,  12 

a  sale  of  land,  she  cannot  be  required  to  Mich.  193. 

join  m  the  conveyance,  nor  properly  be  Where  a  widow,  as  the  heir  of  her  hus- 

joined  in  a  bill  of  the  purchaser  for  specific  band,  becomes  owner  in  fee,  under  §§  17 


56 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  V. 


14.  Where  an  agreement  does  not  designate  the  person  to  whom 
the  consideration  is  to  be  paid,  the  law  raises  an  assumpsit  in  favor 
of  tliose  who  are  the  meritorious  cause  of  action,  or  from  whom 
the  consideration  moves.  Thus,  the  consideration  being  the  sale 
of  the  wife's  inheritance,  in  the  absence  of  an  express  promise,  the 
law  raises  one  to  the  husband  and  wife,  on  which  the  husband 
may  sue,  either  in  his  own  name,  or  in  their  joint  names.  Even 
if  there  was  an  express  promise  to  the  husband,  the  wife  might  be 
joined  as  plaintiff.  But  a  feme  covert  cannot  be  joined,  in  an 
action  to  recover  the  price  of  property  sold  by  her,  and  which  be- 
longed to  her  before  coverture,  or  unless  there  be  an  express 
promise  of  payment  to  her.^(a) 

1  Higdon  V.  Thomas,  1  Har.  &  Gill,  139. 


&  18  of  the  (Ind.)  act  regulating  descents, 
whilst  she  remains  his  widow,  she  has  the 
legal  right  to  alienate  such  estate,  and 
convey  a  perfect  and  absolute  title ;  and 
if  she  sell  by  title-bond,  and  put  the  pur- 
chaser in  possession,  and  tlien  marry 
again,  she  may  after  such  marriage  be 
compelled  to  specifically  perform  such 
contract,  by  conveying  the  legal  estate. 
Newby  v.  Hinshaw,  22  Ind.  334. 

A.,  and  B.  his  wife,  conveyed  her  land 
to  C,  the  daughter  of  B.,  and  wife  of  D., 
by  a  deed  of  gift;  after  which  A.  was  im- 
prisoned on  an  execution  in  favor  of  E., 
and  held  in  close  confinement.  With  a 
view  to  obtain  his  liberation,  C.  agreed 
with  D.,  that,  if  he  would  assume  the  debt 
to  E.,  by  giving  his  note  for  the  amount, 
she  would  pay  it  from  the  avails  of  the 
land  so  conveyed  to  her.  D.  gave  his 
note  accordingly,  and  A.  was  liberated. 
Immediately  afterwards  C.  died ;  and  D., 
having  paid  the  note,  exhibited  to  the 
Court  of  Probate  his  claim  for  the  pay- 
ment, against  her  estate.  Held,  1,  that 
the  agreement  between  C.  and  D.,  having 
been  executed  on  one  part,  was  not  within 
the  Statute  of  Frauds,  and  might  be  proved 
by  parol ;  2,  that  even  if  D.  had  an  equi- 
table claim,  whicli  a  Court  of  Chancery,  on 
suitable  process,  with  the  parties  in  inter- 
est before  it,  could  enforce,  it  was  not 
competent  to  a  Court  of  Probate  to  allow 
it ;  but,  3,  that  the  agreement,  having 
been  made  by  a  feme  covert  with  her 
husband,  without  benefit  to  her,  was  void, 
and  could  not  be  enforced  anywhere. 
Watrous  v.  Clialker,  7  Conn.  224. 

(a)  A  baker  was  desirous  of  disposing 
of  his  shop  and  the  good-will  of  his  busi- 
ness, and  in  consequence  an  advertisement 
was  inserted  in  a  newspaper,  stating  that 


the  house  was  doing  twelve  sacks  a  week. 
The  advertisement  was  inserted  by  the 
broker,  in  consequence  of  a  conversation 
with  the  baker's  wife,  who  managed  the 
business  for  him,  in  which  conversation 
she  told  the  broker  that  they  did  between 
nine  and  ten  sacks  a  week;  upon  M'hich 
he  said,  "  We  must  make  it  twelve  for  the 
paper."  In  consequence  of  the  advertise- 
ment, a  person  desirous  of  purchasing 
went  to  the  wife  and  said  to  her,  "  Are 
you  really  doing  any  thing  like  this  busi- 
ness?" to  which  she  replied,  "  Yes,  we 
are  doing  eleven  sacks,"  and  appealed  to 
the  man  in  the  shop,  who  confirmed  her 
statement.  The  baker  himself  did  not 
appear  at  all  in  any  part  in  the  trans- 
action, except  that  he  received  the  pur- 
chase-money, and  paid  the  broker  his 
commission.  In  an  action  brought  by  the 
purchaser  on  the  representation  contained 
in  the  advertisement,  it  was  held,  that  the 
baker  was  personally  and  individually 
answerable  in  damages,  inasmuch  as, 
though  he  did  not  make  any  representa- 
tion himself,  yet  he  made  the  wife  his 
agent,  and  was  bound  by  her  statements. 
Taylor  v.  Green,  8  Carr.  &  P.  316. 

A.,  the  wife  of  a  bankrupt,  who  was 
abroad,  without  his  consent,  or  a  legal 
ratification  by  herself,  conveyed  her  own 
lands  to  trustees  under  his  sequestration. 
Upon  a  sale  of  these  lands  by  public  roup, 
the  vendor,  by  the  articles  of  roup,  under- 
takes to  execute  to  the  purchaser  a  valid, 
irredeemable  disposition  of  the  subjects, 
as  described  in  his  own  or  constituent's 
title  thereto  ;  also  to  deliver  certain  speci- 
fied deeds,  &c.,  described  as  "  all  the  title- 
deeds  of  the  property  in  his  custody." 
Upon  a  suit  by  the  vendor  for  the  pur- 
chase-money, and  a  proceeding  for  suspen- 


CHAP,   v.]  PARTIES   TO    CONTRACTS.  57 

15.  Ill  reference  to  the  sale  or  purchase  of  lands  in  which  hus- 
band and  wife  are  interested,  the  points  upon  which  there  has  been 
most  difference  of  opinion  are,  whether  a  husl)and  or  wife,  or  both, 
shall  be  compelled  in  equity  to  execute  a  contract  for  the  sale  and 
conveyance  of  the  wife's  estate. (a) 

16.  Where  a  husband  and  wife,  having  a  joint  power  of  ajtpoiiit- 
ment  by  deed  over  the  wife's  estate,  agreed  in  writing  to  sell  it, 
Sir  Thomas  Plummer  doubted  whether  specific  performance  can 
be  compelled  against  them ;  or  whether  the  Court  will  decree  him 
to  procure  her  to  join.^  So  though  a  person  may  agree  to  sell  at  a 
price  to  be  fixed  by  arbitration,  and  the  award  can  be  impeached 
only  upon  the  grounds  affecting  all  awards,  as  fraud  or  gross  mis- 
take ;  yet,  upon  such  an  agreement,  where  some  of  the  persons  to 
be  bound  were  married  women,  one  of  whom  also  had  not  executed, 
the  Court  refused  a  specific  performance,  and  dismissed  the  bill, 
leaving  the  plaintiff  to  law.^  Lord  Eldon  remarked,  —  upon  the 
alarming  doctrine  apparently  sustained  by  some  earlier  cases,  that 
specific  performance  of  the  wife's  contract  will  be  enforced  specifi- 
cally against  the  husband,  —  that,  if  a  man  contracts  for  the  estate 
of  a  married  woman,  he  knows  the  property  is  hers.  The  purchaser 
is  bound  to  regard  the  policy  of  the  law ;  and  what  right  has  he  to 

1  Martin  v.  Mitchell,  2  Jac.  &  Walk.  2  Emery  v.  Wase,  5  Ves.  846. 

425. 

sion  by  the  vendee  ;  held,  it  is  not  such  a  bind  the  husband,  as  to  the  interests  in 

title  as  a  purchaser  is   bound  to  accept,  the  property  which  he  had  at  the  date  of 

and  that  the  title  is  not  limited  by  the  the  agreement,  or  which   he  afterwards 

terms  of  the  articles.     Dick  v.  Donald,  1  acquired.     Aylett  v.  Ashton,    1   j\Ivl.  & 

Bligh,  N.S.  655.  Cra.  105. 

A  married  woman,  with  the  concur-  (o)  Mr.  Sugden  (1  Vend.  &P.  268)  cites 
rence  and  in  the  presence  of  her  husband,  the  following  ancient  case  from  tlie  Year 
signed  an  agreement  in  writing  to  grant  a  Books,  7  Edw.  IV.  14  b. :  A  woman  rtstui 
lease;  all  parties  believing  tliat  she  was  que  use  and  her  husband  joined  in  the  sale 
entided  to  two-thirds  of  the  property  for  of  her  estate;  the  wife  received  the  money, 
her  separate  use,  and  that  the  remaining  and  she  and  her  husband  begged  her 
one-third  belonged  to  her  brother  in  India,  feoffee  to  convey  the  estate  to  the  pur- 
whose  concurrence  it  was  represented  that  chaser,  which  he  accordingly  did.  The 
she  could  procure.  It  was  soon  after-  husband  died,  and  then  tlie  wife  filed  a 
wards  discovered,  that  the  wife  was  en-  bill  against  the  feof!(?e  for  a  lireach  of 
titled  to  one-fourth  only  for  her  separate  trust.  The  cause  was  heard  in  tliu  Ex- 
use,  to  another  fourth  absolutely ;  that  chequer  Chamber,  before  the  Clianccllor 
another  fourth  had  belonged  to  her  de-  and  the  Judges  of  both  benches,  who 
ceased  sister;  and  that  the  remaining  held,  that  the  sale  was  in  fact  the  sale  of 
fourth  belonged  to  the  brother.  The  the  husband  ;  that  the  receipt  of  the  money 
fourth  which  had  belonged  to  the  sister  by  the  wife  was  immaterial,  and  the  sale 
was  purchased  by  the  husband  soon  after  was  void  ;  that  the  trustee  was  answerable 
this  discovery.  Upon  a  bill  for  specific  for  the  breach  of  trust ;  and,  as  the  jiur- 
performance  against  husband  and  wife ;  chaser  knew  he  was  buying  a  married 
held,  there  could  be  no  decree  against  her  woman's  estate,  that  the  wife  might  re- 
in personam ;  and  her  agreement  did  not  cover  the  estate  from  him. 


58  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

complain,  if  she,  who,  according  to  law,  cannot  part  with  her  prop- 
erty but  by  her  own  free  will,  takes  advantage  of  the  locus  peni- 
tentice ;  and  why  is  he  not  to  take  liis  chance  of  damages  against 
the  husband  ?  So  where  baron  and  feme,  having  joint  power  to 
sell  her  estate,  gave  authority  to  an  agent  to  sell  by  auction,  but 
he  sold  by  private  contract  for  more  than  the  price  they  required ; 
held,  the  buyer  should  not  compel  specific  performance.^  So  in 
Outran!  v.  Round,  4  Yin.  Abr.,  Baron,  &c.,  H.  b,  pi.  4,  Lord  Cowper 
said :  "  It  is  a  tender  point,  to  compel  the  husband  by  a  decree  to 
compel  his  wife  to  levy  a  fine,  though  there  have  been  some  prece- 
dents in  the  Court  for  it.  And  it  is  a  great  breach  upon  the  wis- 
dom of  the  law,  which  secures  the  wife's  lands  from  being  aliened 
by  the  husband,  witliout  her  free  and  voluntary  consent,  to  lay  a 
necessity  upon  the  wife  to  part  with  her  lands,  or  otherwise  to  be 
the  cause  of  her  husband's  lying  in  prison  all  his  days."  But  on 
the  other  hand,  in  Hall  v.  Hardy,  3  P.  Wms.  189,  Sir  Joseph 
Jekyll,  M.R.,  said:  "There  have  been  a  hundred  precedents, 
where,  if  the  husband  for  a  valuable  consideration  covenants  that 
the  wife  shall  join  with  him  in  a  fine,  the  Court  has  decreed  the 
husband  to  do  it ;  for  that  he  has  undertaken  it,  and  must  lie  by 
it,  if  he  does  not  perform  it."  And  the  reason  is  said  to  be,^  that 
in  all  such  cases  it  is  to  be  presumed,  that  the  husband,  when  he 
enters  into  such  a  covenant,  has  first  gained  the  wife's  consent. 
So  a  husband  was  decreed  to  join,  and  to  procure  his  wife  to  join, 
in  a  conveyance  of  her  estate  pursuant  to  agreement,  or  to  refund 
a  sum  received  by  the  husband ;  where  the  Court  would  not  make 
a  personal  decree  on  her.^  So  freeholds  were  conveyed  by  lease 
and  release  to  trustees,  to  the  use  of  a  feme  covert,  for  her  separate 
use  for  life,  or  to  the  use  of  such  person  as  she  should  by  writing 
sealed,  &c.,  appoint ;  and,  in  default  of  appointment,  in  trust  to 
pay  the  rents  to  her  for  her  separate  use.  The  husband  and  wife, 
by  writing  not  under  seal,  for  valuable  consideration,  undertook  to 
execute  a  mortgage  of  the  property,  when  required.  The  husband 
died,  and  no  mortgage  had  been  executed.  Held,  the  agreement 
was  binding  upon  the  wife."^  So  it  has  been  lately  held  in  Massa- 
chusetts, that,  if  a  husband  agrees  to  convey  land  with  release  of 
the  wife's  dower  and  homestead,  the  contract  may  be  specifically 

1  Daniel  v.  Adams,  Ambl.  495.  ^  Sedgwick  v.  Hargrave,  2  Ves.  67. 

2  Winter  v.   D'Evneux,    3  P.   "Wms.         *  Stead  v.  Nelson,  2  Beav.  245. 
189,  n. 


CHAP,    v.] 


PARTIES    TO    CONTRACTS. 


59 


enforced  against  him,  so  fiir  as  lie  has  power  to  execute  it,  with 
compensation  in  damages  if  the  wife  refuse  to  join. ^ 

17.  As  between  the  husband  and  wife  alone,  where  a  husband 
covenanted  in  marriage  articles,  in  six  mouths  after  the  death  of  his 
mother,  and  his  coming  in  possession  of  the  estate  in  jointure,  to 
settle,  &c.,  and  he  died  in  the  mother's  life,  leaving  no  issue,  ajid 
the  estate  came  to  his  heir ;  held,  the  heir  should  not  be  com- 
pelled by  the  wife  to  a  specific  performance.^ 

18.  A  conveyance  to  a  ho7id  fide  purchaser,  under  a  decree 
against  a  feme  covert  for  a  sale  of  part  of  her  separate  estate, 
cannot,  after  an  acquiescence  of  twenty-two  years,  be  set  aside  ; 
notwithstanding  the  purchase-money  may  have  been  misapplied. 
So  an  order,  disposing  of  the  real  estate  of  a  feme  covert,  made  on 
her  consent,  and  acquiesced  in  during  her  life,  will  not  be  set  aside 
on  a  doubtful  case,  made  many  years  afterwards,  by  her  represen- 
tatives.^(a) 

1  Park  V.  Johnson,  Mass.  S.J.C.  Law 
Reg.  Jan.  1863,  p.  180. 


(a)  By  deed  of  separation,  the  hus- 
band (a  trader  liable  to  tlie  bankrupt 
laws)  covenants  with  a  trustee  for  the 
wife,  in  consideration  of  being  indemnified 
from  all  debts  and  engagements  which 
miglit  be  contracted  by  her  during  the 
separation,  to  release  his  remainder  in  fee 
to  certain  estates  (of  wliich  lie  was  tenant 
for  life,  remainder  to  the  wife  for  life,  re- 
mainder to  the  issue  of  tlie  marriage, 
remainder  to  himself  in  fee),  to  such  uses, 
&c.,  as  the  wife  shall  by  deed  or  will 
appoint,  with  power  to  the  wife  to  revoke 
them.  The  wife  executes  the  power  by 
deed,  which  she  retains  in  her  possession, 
and  afterwards  alters  and  re-executes. 
Held,  first,  that  the  covenant,  although 
entered  into  on  occasion  of  a  separation 
between  husband  and  wife,  was  3'et  bind- 
ing in  equity,  being  made  to  a  tliird  party  ; 
secondly,  that  it  might  be  supported  against 
creditors,  under  the  Statute  of  James,  by 
the  consideration  of  indemnity  against  the 
wife's  debts  and  engagements ;  tliinllij, 
that,  the  deed  of  appointment  containing 
no  power  of  revocation,  although  it  was 
contained  in  the  instrument  creating  the 
original  power,  the  re-execution  was  void ; 
and  the  original  appointment  therelbre 
was  decreed  to  be  carried  into  execution. 
Worrall  v.  Jacob,  3  Meriv.  268. 

An  attendant  term  having  become 
vested  in  the  wife  of  the  owner  of  the 
inheritance,  as  administratrix  of  .tiie  trus- 
tee, and  her  husband  becoming  bankrupt. 


2  Whitmel  v.  Farrel,  1  Ves.  256. 

3  Burke  v.  Crosbie,  1  Ball  &  B.  489. 

his  assignees  agree  to  sell  the  estate,  and 
file  a  bill  for  specific  performance  of  the 
agreement,  pending  which  suit  tlie  hus- 
band dies.  Held,  the  widow  was  not  en- 
titled to  dower,  that  she  was  bound  to 
assign  the  term  to  the  purcliaser,  and  that 
he  was  bound  to  accept  the  title.  Mole  v. 
Smith,  Jac.  -190. 

In  a  late  case  in  Virginia  (Clarke  v. 
Reins,  12  Gratt.  98),  it  was  held,  that 
equity  will  not  decree  specific  perform- 
ance of  a  contract  by  husband  and  wife 
to  sell  her  land,  as  against  her.  Nor  will 
it  compel  him  to  convey  his  life  estate, 
with  compensation  for  tlie  loss  of  her 
estate.  Daniel,  J.  (ibid.  105),  gives  tiie 
following  view  of  the  decisions  upon  these 
points:  "The  question  whether  a  Court 
of  Equity  will,  under  any  circumstances, 
decree  against  a  hiishaiid  the  specific  per- 
formance of  a  contract  on  his  j)art  to 
procure  the  conveyance  by  his  wife  of 
her  real  estate,  is  one  which  cannot  he 
regarded  as  yet  definitively  settled  in 
England.  In  the  reports  of  the  earlier 
cases,  numerous  precedents  may  be  found 
in  which  the  power  of  the  Chancellor  to 
make  such  decrees  has  been  asserted  and 
enforced.  Thus  the  case  of  Hall  v.  Hardy, 
3  P.  Wms.  187,  in  which,  ujion  a  submis- 
sion of  a  dispute  touching  the  fee-simple 
of  a  parcel  of  land,  the  arbitrators  awarded 
that  the  defendant  should  procure  his  wife 
to  join  with  liim  in  a  fine  and  deed  of 
uses,  and  thereby  convey  the  premises  to 


60  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

19.  Contracts  for  the  sale  and  purchase  of  lands  are  sometimes 
brought  in  question  after  the  death  of  the  contracting  parties. 
Thus  such  a  contract  may  be  enforced,  though,  by  reason  of  the 
vendee's  death,  the  execution  of  bonds  and  a  mortgage  required 
by  the  contract  is  impossible ;  as  the  heirs  or  residuary  legatees 
may  carry  it  out.  But,  it  is  said,  in  case  of  the  death  or  bank- 
ruptcy of  the  purchaser,  it  perhaps  may  be  optional  with  the  seller 
to  rescind  the  contract,  or  to  demand  specific  performance  ;  and,  if 
the  defendants  are  unable  or  unwilling  to  perform,  perhaps  the 
estate  may  be  sold,  and  the  defendants  ordered  to  pay  any  differ- 
ence in  the  amount  of  the  purchase-money. ^  So  it  is  held,  that, 
to  enforce  specific  performance  of  a  parol  sale  of  land  by  one 
deceased,  the  precise  terms  must  be  proved.  The  vendee  must 
also  have  taken  exclusive  possession  in  pursuance  of  the  contract, 
and  in  the  lifetime  of  the  vendor.^ 

20.  If  the  obligee  has  fulfilled  his  part  of  the  contract,  his  ad- 
ministrator may  sue  for  a  breach,  though  the  purchase-money  has 
not  been  paid.^ 

21.  An  averment  in  a  declaration,  that  a  vendor  has  power  to 
sell,  as  executor,  is  sufficient,  without  an  allegation  that  the  title 
of  his  testator  is  good.'* 

1  Tiernan  v.  Roland,  15  Penn.  429.  3  Allen  v.  Greene,  19  Ala.  34. 

2  Sage  V.  M'Guire,  4  Watts  &  Serg.         ^  Adams  v.  M'Millan;  7  Port.  73. 
228,  229. 

the  plaintiff  and  his  heirs,  the  Master  of  her  to  do  directly.  ,  In  the  case  of  Emery 

the  Rolls,  Sir  Joseph  Jekyll,  decreed  a  v.  Wase,  Lord  Eldon  said  that  the  argu- 

specific  performance  of  the  award ;  prefa-  ment  showed  '  the  point  was  not  so  well 

cing    the   decree    with   the   remark   that  settled  as  it  was  understood  to  be.     The 

there   had   been   a   hundred    precedents,  policy  of  the  law  is,  that  a  wife  is  not  to 

where  if  the  husband,  for  a  valuable  con-  part  with  her  property  but  by  her  own 

sideratiou,  covenants  that  the  wife  shall  spontaneous  and   free  will.     If  this  was 

join  with  him  in  a  fine,  the  Court  has  perfectly  res  wtegra,  I  should  hesitate  long 

decreed  the  husband  to  do  it.     In  some  before  I  should  say  the  husband  is  to  be 

of  the  cases  of  a  later  date,  however,  the  understood  to  have  gained  her  consent ; 

propriety   of   making   such   decrees    has  and  the  presumption  is  to  be  made  that 

been  seriously  questioned,  and,  in  others,  he  obtained  it  before  the  bargain,  to  avoid 

positively  denied  ;  as  in  Emery  v.  Wase,  all  the  fraud  that  may  afterwards  be  prac- 

8  Ves.  R.  505  ;  Davis  v.  Jones,  4  Bos.  &  tised   to  procure  it.     The  jjurchaser  is 

Pull.  267;  and  Martin  v.  Mitchell,  2  Jac.  bound  to  regard  the  policy  of  the  law; 

&  Walk.  413.     And  whilst  it  cannot,  per-  and  what  riglit  has  he  to  complain,  if  she, 

haps,  be  said  that  the  English  Chancery  who  according  to   law  cannot  part  with 

has  fully  disclaimed  the  power,  it  may,  I  her  property  but  by  her  own  free  will, 

think,  be  safely  affirmed,  that  the  current  expressed  at  the  time  of  that  act  of  record, 

of  professional  feeling  and  sentiment  in  takes  advantage  of  the  locus  penitentice? 

England  is  rapidly  tending  to  a  conviction  and  why  is  he  not  to  take  his  chance  of 

of  the  impolicy,  cruelty,  and  unfairness  damages  against  the  husband  ?  ' "      See 

of  a  rule  which  constrains  the  wife  indi-  also   1  Rop.  H.  &  W.  547-8  ;    1  Bright, 

rectly,  through  the  sufferings  of  the  bus-  191 ;  M'Cann  v.  Janes,  1  Rob.  256  ;  Evans 

band,  to  do  that  which  the  Courts  have  v.   Kingsberry,  2   Rand.    120 ;    Watts   v. 

long  since  repudiated  their  right  to  coerce  Kenney,  3  Leigh,  272. 


CHAP,   v.]  PARTIES   TO    CONTRACTS.  61 

22.  A.  made  a  writing,  in  these  words,  signed  by  himself:  "  This 
is  to  certify  that  I  engage  to  my  son  B.  the  farm  on  whicli  he  now 
lives,  and,  should  Providence  determine  otherwise,  he  is  to  receive 
of  my  estate  $1,000,  —  $500  for  the  improvements  made  on  the 
farm  on  which  my  son  C.  lives,  and  $500  for  money  to  be  paid  to 
D.,  widow  of  my  deceased  son."  After  the  death  of  A.,  B.  brought 
assumpsit  against  A.'s  executor,  alleging  that  A.,  by  the  contract, 
promised  to  give  to  B.  the  farm,  and,  should  Providence  determine 
otherwise,  that  B.  should  receive  from  A.'s  estate  $1,000  ;  and 
that  A.  did  not  give  the  farm  to  B,,  but  that  he  gave  and  devised 
it  to  C.  Held,  the  writing  was  an  intelligible  and  valid  contract, 
and  the  action  could  be  maintained.^ 

23.  Where  a  bond  for  conveyance  has  been  given,  and,  after  the 
death  of  the  obligor,  his  administrator  executes  a  deed,  by  virtue 
of  the  statute  of  North  Carolina,  any  equitable  defence  against  the 
bond  may  be  set  up  against  the  deed.^ 

24.  The  decree  of  a  court  of  competent  jurisdiction,  ordering 
an  administrator  to  convey  title  to  land,  which  decree  purports  to 
be  founded  on  a  title-bond  executed  by  the  intestate,  is  evidence 
that  he  did  execute  it.^ 

25.  In  a  suit  for  title,  on  such  bond,  it  is  not  essential  to  the 
validity  of  the  decree,  or  the  title  executed  under  it,  that  the  heirs 
of  the  intestate  should  have  been  made  parties.'* 

26.  The  owner  of  land  declared  in  writing,  that  he  held  the 
same  in  trust  for  A.,  his  heirs  and  assigns,  subject  to  his  own  lien 
for  advances  thereon,  and  that  he  was  to  convey,  and  would  con- 
vey, to  A.,  or  his  representatives,  upon  re-imbursement  of  his  ad- 
vances. A.  having  died,  one  of  his  creditors  took  out  letters  of 
administration,  inventoried  his  interest  in  the  land,  and,  under  a 
license  from  the  Probate  Court,  sold  and  conveyed  the  same  for 
payment  of  debts.  The  administrator  subsequently  purchased 
the  interest  so  sold  of  such  purchaser,  received  a  conveyance  there- 
of, and  then  brought  his  bill  in  equity  against  the  trustee,  for  a 
conveyance  upon  paying  the  advances  thereon.  Held,  the  plaintiff 
might  maintain  his  bill  as  the  representative  of  A.,  if  not  in  his 
own  individual  right.^ 

1  Rue  V.  Eue,  1  New  Jersey,  369.  *  Ibid. 

'•2  McCraw  v.  Gwin,  7  Ired.  Eq.  55.  5  Dumphe  v.  Hayward,  2  Gush.  429. 

3  Holt  V.  Clemmons,  3  Tex.  423.     See 
Holt  V.  Payne,  3  Tex.  478. 


62  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

27.  The  heirs  of  a  vendor,  though  not  named  in  the  contract, 
and  whether  adult  or  infant,  are  bound,  and  may  be  compelled,  to 
execute  it  to  the  extent  of  their  assets.^  But  in  New  York,  gen- 
erally, the  heir  will  not  be  compelled  to  enter  into  personal  cove- 
nants, in  fulfilment  of  the  ancestor's  contract.^  And  a  suit  for 
specific  performance  is  properly  brought  by  the  administrator 
alone.     The  heirs  are  not  proper  parties.^ 

28.  Bill  for  specific  performance  of  a  contract  to  convey,  against 
the  heirs  of  the  vendor,  one  of  whom  was  an  infant.  The  contract 
stipulated  for  a  good  and  sufficient  deed,  free  of  all  incumbrances, 
but  did  not  name  the  heirs.  The  vendor  left  a  widow.  Held,  the 
infant  was  bound  to  convey,  without  covenants,  and  the  other  heirs 
with  covenants  against  their  own  acts,  on  payment  of  the  stipulated 
price,  deducting  from  each  payment  a  proportionate  share  of  the 
value  of  the  dower.* 

29.  A  parol  agreement  for  the  sale  of  land  will  not  be  enforced 
specifically  against  the  heir  of  the  vendor,  though  he  had  given  in- 
structions in  writing,  stating  the  terms,  to  an  attorney,  to  draw  the 
deeds.^ 

30.  The  heirs  of  a  vendee,  who  had  a  parol  contract  for  800 
acres  of  land,  and  had  paid  the  whole  price,  sold  and  conveyed  100 
acres  to  the  complainant.  Held,  he  could  not  compel  the  heirs  of 
the  vendor  to  convey  to  him  the  100  acres.^ 

31.  When  a  bond  for  title  shows  that  the  title  is  in  a  stranger, 
from  whom  the  obligor  does  not  procure  a  conveyance  to  the  obli- 
gee, nor  himself  obtain  it ;  the  obligee's  heir  does  not  inherit  the 
land,  nor  can  he  maintain  a  suit  upon  the  bond  in  his  own  name, 
whether  a  breach  of  it  occurred  before  or  after  the  obligee's  death.'^ 

32.  If  a  vendor  leaves  several  heirs,  one  of  whom  is  a  minor,  the 
purchaser  is  not  bound  to  accept  a  deed  from  the  adult  heirs,  and 
a  bond  of  the  guardian  of  the  minor  with  surety,  conditioned  for 
the  minor's  conveyance  when  he  shall  come  of  age.^  So  in  a  suit 
demanding  specific  performance  of  a  contract,  by  conveying  lands 
in  Ohio,  stipulated  to  be  conveyed  as  the  consideration  for  other 
lands  sold  in  Kentucky,  or,  in  lieu  thereof,  requiring  indemnifica- 
tion by  the  payment  of  money  ;  held,  all  the  co-heirs  of  the  vendor, 

1  Hill  V.  Eessegien,  17  Barb.  162.  6  Lord   v.  Underdunck,  1    Sandf.  46, 

2  Ibid.  48. 

3  Schoeppel  v.  Hopper,  40  Barb.  425.  ^  Allen  v.  Greene,  19  Ala.  34. 

*  Hill  V.  Eessegien,  17  Barb.  162.  ^  Barickman  v.  Kuykendall,  6  Blackf. 

5  Givens  v.  Calder,  2  Desaus.  171.  21. 


CHAP.    V,] 


PARTIES   TO    CONTRACTS. 


63 


deceased,  ought  to  be  made  parties  to  the  bill,  or  the  death  of  one 
of  them  not  a  party  ought  to  be  proved.^  But,  where  a  vendor 
dies  before  performance  of  the  contract,  leaving  an  only  child  as 
his  heir,  who  is  a  lunatic ;  equity  may  decree  a  specific  perform- 
ance, and  direct  the  committee  of  the  lunatic  to  execute  all  neces- 
sary conveyances. ^(a) 


1  Morgan  v.  Morgan,  2  Wheat.  290. 

(a)  It  has  been  lielJ,  that  an  Infant  can- 
not sustain  a  suit  for  specilic  performance, 
because  tlie  remedy  is  not  mutual.  Fligiit 
V.  BoUand,  4  Kuss.  298 ;  2  Story,  Eq.  § 
751,  n.  Inasmuch  as  both  the  rule  and 
the  reason  of  it  are  a  departure  from  the 
general  principle,  which  liolds  infancy  to 
be  a  strictly  personal  privilege,  and  from 
other  analogies  of  the  law,  it  is  desirable 
to  state  at  length  the  case  upon  which  the 
doctrine  chiefly  rests.  In  this  case,  tlie 
bill  was  filed  b\'  the  plaintifl',  as  an  adult. 
Upon  discovering  that  he  was  an  intant, 
the  defendant  moved  that  the  bill  be  dis- 
missed with  costs  against  the  plaintiff's 
solicitor ;  and  the  plaintiff"  was  then  al- 
lowed to  amend  by  inserting  a  next 
friend.  Upon  the  opening  of  the  case,  a 
preliminary  objection  was  taken,  that  a 
bill  by  an  infant  could  not  be  sustained. 
It  was  argued,  in  support  of  the  objection, 
that  specific  performance  cannot  be  de- 
creed a<)ainst  an  infant,  and,  if  a  decree 
were  made  as  prayed  for,  the  Court  could 
not  compel  the  plaintiff^  to  execute  it ;  that 
he  could  not  be  forced  to  pay  the  pur- 
chase-money, and,  on  attaining  full  age, 
might  repudiate  the  contract  and  the  suit. 
On  the  other  side,  it  was  argued,  that  the 
want  of  mutuality  is  not  in  all  eases  an 
objection  to  specific  performance ;  as  in 
case  of  a  contract  by  a  husband  for  sale  of 
the  wife's  land,  which  the  husband  and 
wife  may  enforce,  but  which  cannot  be 
enforced  against  either  of  them.  So  also 
a  party  who  has  signed  an  agreement, 
though  himself  bound,  cannot  enforce  it 
against  one  who  has  not  signed  it.  Sir 
John  Leach,  Masterof  the  Rolls,  says :  "  No 
case  of  a  bill  filed  by  an  intant  for  the 
specific  performance  of  a  contract  made 
by  him  has  been  found  in  the  books.  It 
is  not  disputed,  that  it  is  a  general  princi- 
ple of  Courts  of  Equity  to  interpose  only 
where  the  remedy  is  mutual.  The  plain- 
titTs  counsel  principally  rely  upon  a  sup- 
posed analogy  afforded  by  cases  under  the 
Statute  of  Frauds,  wliere  the  plaintiff'  may 
obtain  a  decree  for  specific  performance 
of  a  contract  signed  by  the  defendant, 
although  not  signed  by  the  plaintiff'.  It 
must  be  admitted  that  such  now  is  the 


2  Swartwout  v.  Burr,  1  Barb.  495. 

settled  rule  of  the  Court,  although  seri- 
ously questioned  by  Lord  l^edcsdaie  U])(>n 
the  ground  of  want  of  mutuality.  IJut 
these  cases  are  supjjorted,  first,  because 
the  Statute  of  Frauds  only  requires  the 
agreement  to  be  signed  l)y  tlie  party 
to  be  charged  ;  and  next,  it  is  saiil  that 
the  plaintiff,  by  tlie  act  of  filing  the  bill, 
has  made  the  remedy  mutual.  Neither 
of  these  reasons  ajiply  to  the  case  of  an 
infant.  The  act  of  filing  the  bill  by  his 
next  friend  cannot  bind  him  ;  and  my 
opinion  therefore  is,  that  the  bill  must  be 
dismissed  with  costs,  to  be  paid  by  the 
next  friend."  But  see  Clayton  v.  Ash- 
down,  9  Vin.  393,  pi.  1 ;  Shannon  v.  Brad- 
street,  1  Sch.  &  L.  52,  58;  1  Sugd.  282. 

Though  an  infant  who  has  entered  into 
a  contract  cannot  be  compelled  to  com- 
plete it,  yet  he  cannot  maintain  an  action 
to  recover  back  a  deposit.  Wilson  v. 
Kearse,  Peake's  Add.  Cas.  196. 

(English  statutes,  not  generally  in  force 
in  this  country,  have  provided  for  the 
conveyance  of  estates  purchased  by  injutit 
trustees. 

A  vendor  dying  before  the  sale  was 
completed,  his  heir-at-law,  an  infant,  was 
declared  to  be  a  trustee,  within  the  Stat- 
ute of  the  7th  of  Queen  Anne;  and  di- 
rected to  convey.  Smith  v.  Hibbard,  2 
Dick.  780. 

So  an  infant  trustee  has  been  held 
bound  to  join  in  a  conveyance  within  the 
above  statute.  Otherwise,  where  the  in- 
fant has  an  interest,  or  there  is  a  doubt 
thereof,  unless  on  proper  suit.  Hawkins 
V.  Obeen,  2  Ves.  5^59. 

The  Court  will  not  on  motion  or  peti- 
tion order  an  infant  trustee  to  convey, 
unless  the  trust  appear  in  writing,  but 
will  leave  the  cestui  to  get  a  decree  by  bill. 
Vernon,  2  P.  Wms.  549. 

The  statute,  enabling  infant  trustees  to 
convey,  extends  only  to  plain  and  exjjress, 
not  to  implied  or  constructive,  trusts. 
Goodwyn  r.  Lister,  3  P.  Wms.  387.  The 
Lord  Chancellor  says  :  "  There  can  be  no 
doubt  with  regard  to  exjjrcss  trusts  by 
deed,  but  that  an  infant,  being  a  mere 
trustee,  may  be  ordered  to  convey  ;  and 
there  is  no  inconvenience  in  tlirectinii  an 


64 


LAW  OF  VENDORS  AND  PURCHASERS. 


[chap.  V. 


33.  A  bond  by  an  administrator  to  convey  real  estate  of  his  intes- 
tate, in  contemplation  of  a  sale  under  a  surrogate's  order,  is  void.^ 
So,  if  commissioners  for  selling  the  real  estate  of  one  deceased  give 
a  bond,  conditioned  to  make  or  cause  to  be  made  a  title  in  fee-sim- 
ple, which  exceeds  their  authority,  and  fail  to  bind  the  estate  of 
the  deceased  ;  they  are  bound  personally .'-^(a) 

34.  Questions  have  sometimes  arisen,  in  reference  to  the  lia- 
bility of  trustees  and  cestuis  que  trust.  Thus,  the  owner  of  an 
estate  having  agreed  with  the  cestui  que  trust  of  an  adjoining  estate, 
to  build  a  new  partition  wall  between  them,  in  place  of  the  wall 
then  standing,  for  the  benefit  of  both,  and  having  built  the  same 
accordingly,  on  a  promise  by  the  latter  that  he  would  pay  for  one 


1  Herrick   v.    Grow,    5    Wend.   579 ; 
M'Dermed  v.  M'Cartland,  Hardin,  18. 


2  Whiteside  v.  Jennings,  19  Ala.  784. 


infant  to  part  with  an  estate,  which  is  of 
no  benefit  to  liim.  But  tlie  present  ques- 
tion is,  whether  this,  beinji;  a  trust  only  bij 
construction  of  equity,  be  within  tlie  act; 
and  here  I  incline  strongly  to  the  negative. 
I  cannot  think  constructive  trusts  to  have 
been  witliin  the  view  of  this  Act  of  Parlia- 
ment, which  does  not  make  provision  for 
infants  to  convey  in  pursuance  of  the  de- 
crees of  this  Court,  but  only  gives  power 
to  make  orders  in  a  summary  way,  in 
cases  that  are  originally  plain  and  uncon- 
troverted  by  the  parties." 

A  tenant  of  frank  tenement,  descendi- 
ble, agrees  to  sell,  receiving  part  of  the 
purchase-money.  The  vendor  dies ;  his 
lieir  enters  ;  and  the  vendee  exliibits  this 
bill  against  liim,  to  have  his  contract  exe- 
cuted. Bill  dismissed,  upon  the  ground 
that  the  heir  is  but  a  special  occupant,  and 
does  not  claim  under  his  father.  Anon.  2 
Freera.  155. 

Bill  for  specific  performance.  A  copy- 
holder covenants  with  the  plaintiffs  to 
surrender  to  trustees,  in  trust  to  sell,  and 
dies  before  surrender,  leaving  an  infant 
heir  the  defendant.  The  plaintiffs,  having 
agreed  to  sell  the  estate,  file  this  bill. 
Held,  the  heir  was  not  an  infant  trustee 
within  6  Geo.  IV.  ch.  74,  and  therefore 
could  not  be  ordered  to  surrender  imme- 
diately. Bill  dismissed,  with  costs.  King 
V.  Turner,  2  Sim.  550.  "  The  Vice-Chan- 
cellor  said,  that  he  always  considered  that 
the  Statute  of  Anne  did  not  apply  to  con- 
structive trustees ;  that  the  late  act,  6 
Geo.  IV.  ch.  74,  did  not,  as  he  conceived, 
apply  ;  that  the  only  distinction  was,  that 
the  late  statute  extended  to  infant  trustees 
having  an  interest,  and  to   cases  where 


there  were  executory  trusts  to  be  per- 
formed ;  that  the  circumstance  of  there 
being  a  decree  did  not  make  any  differ- 
ence, because  a  decree,  declaring  an  infant 
to  be  a  trustee,  must  give  him  a  day  to 
show  cause,  when  he  came  of  age,  and 
could  only  direct  him  to  convey  when  he 
should  come  of  age,  unless  he  should  show 
cause  against  it ;  a  decree,  therefore,  could 
not  enable  the  Court  to  direct  him  to  con- 
vey before  he  came  of  age,  and,  therefore, 
could  not  make  him  a  trustee  within  the 
statute.  Tlie  consequence  was,  that  the 
plaintiffs  could  not  now  procure  a  convey- 
ance, and,  therefore,  the  bill  must  be  dis- 
missed with  costs."     Ibid.  551. 

The  Court  refused  to  declare  an  infant 
customary  heir  of  copyhold  premises  to 
be  a  trustee  within  the  Statute  of  Anne, 
and  to  direct  him  to  surrender  to  one  who 
had  purchased  from  the  ancestor  for  valu- 
able consideration,  which  was  actually 
paid.  So  held,  on  a  motion  made  to  con- 
firm a  report,  which  found  those  facts, 
and  that  the  infant  was  a  trustee  within 
the  7th  of  Anne ;  on  the  ground  that  it 
was  an  ex  parte  proceeding,  and  non  constat 
that  the  ancestor  was  competent  to  sell. 
Janaway,  7  Price,  679. 

Where  a  father  and  minor  son  cove- 
nant to  convey  lands  on  valuable  consid- 
eration, after  the  son  comes  of  age  the 
father  may  be  decreed  to  procure  his  son 
to  convey.     Anon.  2  Cha.  Ca.  53.) 

(a)  In  New  York,  in  a  suit  by  the 
devisees  of  the  land  and  the  contract  for 
the  price  of  land  sold  by  the  testator,  the 
executor  must  be  joined  as  a  plaintiff. 
Adams  v.  Green,  34  Barb.  176. 


CHAP,   v.]  PARTIES   TO    CONTRACTS.  65 

half  of  the  wall,  if  at  any  future  time  he  should  have  occasion  to 
use  it  for  any  other  purpose  than  that  for  which  the  old  one  was 
then  used  ;  the  trustees  of  the  last-mentioned  estate  suhsequently 
sold  and  conveyed  the  same,  witliout  making  any  mention  of  the 
partition  wall,  but  with  the  consent  of  the  cestui  que  trust,  signified 
by  his  signing  and  sealing  the  deed ;  and  the  purchaser  subse- 
quently made  use  of  the  wall  for  a  different  purpose  from  that  for 
which  the  old  one  was  used.  Held,  the  agreement  on  the  part  of 
the  cestui  que  trust  was  merely  personal,  and  his  assent  to  the 
deed  was  not  a  use  of  the  wall  by  him,  within  the  meaning  of  his 
agTeement.i(a) 

35.  Questions  have  also  arisen  from  the  alienage  of  a  purchaser 
of  real  estate,  and  his  consequent  inability  to  acquire  an  inde- 
feasible title.  Upon  this  point  it  has  been  held,  that  alienage  of 
the  vendee  will  not  entitle  the  vendor  to  a  decree  for  rescinding 
the  sale,  though  it  may  afford  a  reason  for  refusing  specific  per- 
formance, as  against  the  vendee.^  But,  if  the  parties  have  not  an 
adequate  remedy  at  law,  the  vendor  may  be  considered  as  a  trustee, 
for  purchasers  under  a  sale  by  order  of  Court  for  the  benefit  of 
the  vendee.^ 

36.  But,  with  regard  to  the  parties  to  a  contract  for  the  sale 
and  purchase  of  lands,  the  questions  most  frequently  arising  are 
those  which  grow  out  of  the  relation  of  'principal  and  agent.  Of 
course  the  most  important  inquiry  under  this  head,  is  the  existence 
and  source  of  authority  to  act  for  one  person,  which  is  claimed 
and  exercised  by  another.  And  the  weight  of  authority  seems  to 
be,  that,  although  contracts  for  the  sale  and  purchase  of  lands 
must  themselves  be  in  writing,  yet  verbal  authority  to  an  agent  to 
sell  lands,  or  a  verbal  ratification  of  such  sale,  made  in  the  name  of 
the  principal,  is  sufficient.*  And  it  is  said,  a  parol  sale  by  an  agent 
is  as  valid  as  a  parol  sale  by  a  principal. ^  The  distinction,  how- 
ever, has  been  made,  that  a  sale  of  land  by  an  agent,  under  a  parol 
authority,  is  void  ;  but,  if  the  sale  be  subsequently  affirmed  by  the 
principal,  he,  and  those  who  claim  under  him,  are  estopped  from 

1  Jenkins  v.  Spooner,  5  Cush.  419.  Coleman  v.  Garsigues,  18  Barb.  60 ;  Mars- 

2  Hepburn  v.  Dunlap,  1  AVheat.  179.  ton  v.  Roe,  8  Ad.  &  Ell.  14 ;  Newton  v. 

3  Ibid.  Bronson,  3  Kern.  587.     See  §  56. 

4  Johnson  v.  M'Gruder,  15  Mis.  305;  5  6  S.  &  R.  90. 

(a)  When  the  trustee,  in  a  deed  of  trust    money.     Gardner  u.  Armstrong,  31  Mis. 
to  secure  a  debt,  sells  real  estate,  he  is    535. 
the  proper  party  to  sue  for  the  purchase- 

5 


66 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 


recovering  the  land  in  ejectment,  even  though  a  deed  to  the  agent 
himself,  under  which  he  undertook  to  sell,  was  forged.\a^  Ver- 
bal directions  to  an  agent,  who  has  a  power  of  attorney  to  convey 

1  Vanhorn  v.  Frick,  6  Serg.  &  K.  90. 


(«)  The  signing,  sealing,  and  delivery 
of  a  deed  by  an  agent  will  not  be  valid, 
unless  authorized  by  an  instrument  under 
seal,  or  done  in  the  actual  presence  of 
tlie  principal.  Kime  v.  Brooks,  9  Ired. 
218.  And  it  has  been  held,  that  the 
power  of  an  agent  to  rent  lands  must  be 
proved  by  other  testimony  than  his  own. 
If  there  is  a  written  power,  it  should  be 
produced ;  if  it  is  burnt  or  lost,  the  con- 
tents should  be  proved.  Neither  shall 
the  agent's  leasing  for  some  years  and 
collecting  the  rents,  and  the  acquiescence 
of  the  owner,  be  presumptive  proof  of 
the  power.  Meredith  v.  Macoss,  1  Yea. 
200. 

A  question  arose,  whether  the  defend- 
ant had  given  a  written  authority  to  one 
A.  to  dispose  of  certain  premises  which 
the  plaintiff  alleged  he  had  bought  under 
that  authority.  To  prove  that  a  written 
authority  was  given,  but  had  been  mis- 
laid, the  plaintiff  offered  A.  as  a  witness. 
Held,  he  was  not  competent,  unless  the 
contents  of  the  writing  were  proved  by 
other  witnesses;  and  then  he  might  be 
allowed  to  show  how  he  had  executed 
his  instructions.  Nicholson  v.  Mifflin,  2 
Dall.  246. 

Although  an  executor  or  other  trustee 
cannot  authorize  an  agent  to  sell,  the 
trust  being  a  personal  one ;  still  the  prin- 
cipal may  subsequently  ratify  such  sale. 
But,  where  the  principal  could  not  dele- 
gate authority  to  make  the  contract,  the 
ratification  must  be  in  writing,  and  in 
such  form  as  would  have  been  valid  if  he 
had  made  the  contract.  Newton  v.  Bron- 
son,  3  Kern.  587. 

With  regard  to  the  validity  of  a  deed 
of  land  made  by  an  agent ;  in  the  case  of 
Gage  V.  Gage,  10  Fost.  420,  it  was  held, 
that  a  power  of  attorney  to  convey,  in 
order  to  make  the  deed  effectual,  ought 
to  be  as  certain  as  the  deed  itself  is  re- 
quired to  be  ;  as,  for  instance,  to  be 
attested  by  two  witnesses,  the  deed  being 
required  by  statute  to  be  thus  attested. 
Eastman,  J.,  gives  the  following  view  of 
previous  decisions  upon  this  subject  (p. 
423)  :  "  In  Lumbard  v.  Aldrich,  8  N.H. 
31,  it  was  held,  in  general  terms,  that  a 
power  of  attorney  ought  to  be  as  certain 
as  it  is  necessary  for  the  deed  to  be 
which  is  to  be  executed  under  it.  But 
the  particular  formalities  required  in  the 
execution  of  a  power  of  attorney  were  not 


specially  considered.  In  Montgomery  v. 
Dorion,  6  N.H.  Eep.  2-52,  it  was  said  by 
Parker,  J.,  that  the  statute  indicates  that 
powers  of  attorney  were  intended  by  the 
Legislature  to  be  placed  on  the  same 
ground  as  the  deeds  which  might  be 
made  under  them.  And  the  remarks  of 
the  Court  in  Southerin  v.  Mendum,  5 
N.H.  Eep.  428,  are  of  a  like  import.  In 
Society  for  Propagating  the  Gospel  v. 
Young,  2  N.H.  Rep.  312,  Woodbury,  J., 
appears  to  express  the  opinion,  that  a 
power  of  attorney  should  be  as  formal  as 
the  deed.  Story,  in  his  work  on  Agency, 
after  laying  down  the  rule  that  an  agent 
or  attorney  may  ordinarily  be  appointed 
by  parol,  says,  that  one  exception  is,  that 
wherever  any  act  of  agency  is  required 
to  be  done  in  the  name  of  the  principal, 
undei-  seal,  the  authority  to  do  the  act 
must  be  conferred  by  an  instrument 
under  seal.  Thus,  for  example,  if  the 
princii^al  would  authorize  an  agent  to 
make  a  deed  in  his  name,  he  must  confer 
the  authority  on  the  agent  by  a  deed.  A 
mere  unsealed  writing  will  not  be  suffi- 
cient to  make  the  execution  of  the  deed 
valid  at  law,  though  the  Court  of  Equity 
might,  in  such  case,  compel  the  principal 
to  confirm  and  give  validity  to  the  deed. 
Story  on  Agency,  ch.  5,  pp.  48,  50.  These 
authorities,  it  will  be  perceived,  do  not 
come  precisely  to  the  point  raised  in  this 
case,  although  they  have  a  general  bear- 
ing upon  it. 

"  The  <case  of  Clark  v.  Graham,  6 
Wheat.  577,  has  a  direct  application.  It 
was  there  held,  that  a  power  to  convey 
lands  must  possess  the  same  requisites, 
and  observe  the  same  solemnities,  as  are 
necessary  in  a  deed  directly  conveying 
the  lands. 

"  This  is  the  only  case  that  we  have 
met  with  that  is  directly  in  point.  But 
we  think  that  the  rule  as  there  stated  is 
the  correct  one,  and  that  such  should  be 
the  doctrine  in  a  Court  of  Law.  An 
agent  should  not  have  the  power  to  do  an 
act  where  the  instrument  giving  him  the 
power  is  incomplete  —  where  it  lacks  a 
requisite  which  would  be  essential  in  per- 
forming the  act  itself.  Should  it  at  any 
time  appear  that  the  principles  of  good 
conscience  would  be  infringed  by  this 
rule,  equity  might,  perhaps,  interfere  to 
make  such  decrees  as  would  be  deemed 
right." 


CHAP,    v.]  PARTIES   TO   CONTRACTS.  67 

lands,  can  neither  give  new  authority  to  convey,  nor  enlarge  that 
contained  in  the  power.^ 

37.  An  authority  to  sell  and  convey  lands  for  cash  includes  the 
right  to  receive  the  purchase-money.^  So,  where  A.  engaged  B. 
to  hire  a  certain  piece  of  land  for  him,  at  a  certain  rent  or  at  any 
rent ;  and  B.  effected  the  lease,  but  the  lessor,  being  unwilling  to 
give  credit  to  A.,  trusted  B.,  and  B.  paid  the  rent:  held,  this  was 
a  general  agency,  the  payment  by  B.  was  within  the  object  of  it, 
and  A.  was  liable  to  an  action  for  the  money  paid,  without  de- 
mand.^ But,  where  baron  and  feme,  liaving  joint  power  to  sell 
her  estate,  authorized  an  agent  to  sell  by  auction,  and  he  sold  by 
private  contract  for  more  than  the  price  they  required ;  held,  the 
buyer  could  not  compel  specific  performance.'* 

38.  A  power  of  attorney  to  sell  lands,  "  for  the  purpose  of 
making  actual  settlements  thereon,"  and  "  to  sign,  seal,  and  deliver 
sufficient  deeds,  conveying  the  land  in  fee-simple,  with  the  several 
covenants  and  a  general  warranty ; "  leaves  it  to  the  judgment  of 
the  attorney  to  determine,  whether  the  purchasers  buy  for  this 
purpose,  and,  in  the  absence  of  fraud,  the  conveyance  will  be  valid, 
altliough  the  land  was  purchased,  not  for  settlement,  but  on  specu- 
lation.^ 

39.  A  land-broker,  having  authority,  if  he  could  sell  land  for 
cash  on  delivery  of  the  deed,  "  to  close  tlie  bargain,"  signed  an 
agreement  in  the  name  of  the  principal,  to  sell  the  land  for  the 
sum  fixed  in  cash  on  delivery  of  the  deed,  and  also  that  the  prin- 
cipal should  give  a  warranty  deed,  with  full  covenants  and  a  per- 
fect title  at  any  time  on  demand  within  thirty  days.  Held,  the 
principal  was  not  bound",  the  express  authority  being  merely  "  to 
close  the  bargain,"  and  not  involving  the  riglit,  in  case  of  lands, 
to  sign  a  contract ;  and  the  general  agency  of  land-brokers  not 
being  any  more  extensive.*^ 

40.  Where  a  power  of  attorney  authorized  the  agent  "  to  con- 
tract for  the  sale  of,  and  to  sell,  eitlier  in  whole  or  in  part,  the 
lands  and  real  estate  so  purchased,"  and  "  on  such  terms  in  all 
respects  as  he  shall  deem  most  advantageous,"  and  "  to  execute 
deeds  of  conveyance  necessary  for  the  full  and  perfect  transfer  of 
all  our  respective  right,  title,  &c.,  as  sufficiently  in  all  respects  as 

1  Spofford  V.  Hobbs,  29  Maine,  148.  *  Daniels  v.  Adams,  Ambl.  405. 

2  Johnson  v.  M'Gruder,  15  Mis.  365.  5  Spofford  v.  Hobbs,  29  Maine,  148. 

3  Irions  v.  Cook,  11  Ired.  203.  ^  Colenaan  v.  Garrigues,  18  Barb.  60. 


68  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

we  ourselves  could  do  personally  in  the  premises  ;  "  held,  that  these 
expressions,  aided  by  the  situation  of  the  parties  and  the  property, 
the  usages  of  the  country,  the  acts  of  the  parties  themselves,  and 
any  other  circumstances  having  a  legal  bearing  upon  the  question, 
gave  to  the  agent  the  power  to  enter  into  a  covenant  of  seisin.^ 

41.  A  proprietor  of  lands,  who  had  sold  lots  for  which  the  pay 
was  still  due,  and  contracted  to  sell  others,  granted  a  power,  "  to 
collect  and  receive  all  sums  of  money  due  to  him  for  said  lands 
from  purchasers,  and  to  execute  all  such  contracts  as  the  sales 
may  require."  Held,  the  power  did  not  authorize  new  contracts 
for  the  sale  of  other  lands. ^ 

42.  A  contract,  by  which  a  right  of  pre-emption  is  given  to  a 
party  for  a  certain  time,  at  a  fixed  price,  on  a  bond  fide  expectation 
that  he  may  become  a  purchaser,  will  not  constitute  him  an  agent 
of  the  vendor,  althoiigh  he  sells  his  interest  in  the  contract  at  an 
advanced  price  before  the  expiration  of  the  term.  But  if  the 
right  of  pre-emption  is  given,  not  with  an  expectation  that  the 
party  will  become  a  purchaser,  but  solely  for  the  purpose  of 
enabling  him  to  make  sale  of  the  thing,  and  to  get  his  compensa- 
tion in  the  advanced  price,  this  will  render  him  the  agent  of  the 
owner,  and  the  owner  responsible  for  his  acts.^ 

43.  Under  a  power  to  "  mortgage  or  convey  for  the  payment  of 
debts,"  the  property  may  be  conveyed  to  a  trustee,  with  authority 
to  sell  for  the  satisfaction  of  debts.* 

44.  Where  a  person  for  himself,  and  as  agent  for  another,  pur- 
chases land  on  their  joint  account,  but  for  a  higher  price  than  he 
is  authorized  to  pay,  but  without  any  collusion  with  the  vendor, 
or  knowledge  on  the  part  of  the  vendor  that  he  is  exceeding  his 
authority  ;  the  other  purchaser  must  either  wholly  adopt  or  wholly 
repudiate  the  transaction.^  But  where  an  agent,  holding  a  power 
of  attorney  to  sell  lands,  makes  a  conveyance  not  authorized  by 
the  power,  the  taking  back  of  a  mortgage  and  notes,  neither  of 
which  contain  any  specific  reference  to  the  deed,  nor  any  thing 
inconsistent  with  the  attorney's  want  of  authority,  and  the  receiving 
by  the  principal  of  the  money  paid  upon  the  notes,  will  not  operate 
as  a  ratification  of  the  conveyance,  nor  as  an  estoppel  from  deny- 
ing the  validity  of  the  deed.^ 

1  Le  Eoy  v.  Beard,  8  How.  451.  4  Qimell  v.  Adams,  11  Humph.  283. 

2  Calef  r.  Foster,  32  Maine,  92.  5  Crawford  v.  Barkley,  18  Ala.  270. 
8  Mason  v.  Crosby,  Daveis,  303.                    6  Spofford  v.  Hobbs,  29  Maine,  148. 


CHAP,    v.]  PARTIES   TO    CONTRACTS.  69 

45.  All  act,  authorizing  the  auditor  to  rescind  contracts  for  the 
purchase  of  lots,  where  none  of  the  ])urchase-money  had  been  paid, 
and  he  was  satisfied  that  the  purchasers  and  their  sureties  were 
insolvent;  applied  only  to  the  cases  expressly  specified,  and  did 
not  authorize  the  auditor  to  cancel  a  contract  for  a  lot,  the  pur- 
chaser of  which  was  not  insolvent,  and  whose  note  was  not,  at  the 
date  of  the  rescission,  the  property  of  the  State. ^ 

46.  A  purchaser  alleged,  by  his  answer  to  a  suit  for  specific 
performance,  that  he  acted  as  a  puffer  in  bidding  for  one  lot,  and 
also  for  another  lot,  which  was  knocked  down  to  him ;  and  that  he 
therefore  purchased  the  lot,  and  signed  the  agreement  for  the 
purchase,  as  the  agent  of  the  vendor ;  but  the  statement,  in  his 
depositions,  of  the  circumstances  attending  the  signature,  was 
somewhat  different  from  that  in  his  answer,  and  he  had  signed  an 
order  on  his  attorney  for  payment  of  the  deposit-money.  Held, 
there  was  not  sufficient  evidence  of  agency,  and  the  defendant  was 
held  to  have  purchased  on  his  own  account.^ 

47.  Questions  frequently  arise,  from  the  form  of  execution  of  a 
contract  made  by  an  agent,  as  to  the  respective  liabilities  of  the 
principal  and  agent.  Upon  this  subject,  the  general  rule  is,  that 
a  sealed  covenant  for  the  sale  of  land,  made  by  an  attorney  in 
fact,  must  be  executed  in  the  name  of  the  principal  by  A.  B.,  his 
attorney  ;  if  the  attorney  affix  only  his  own  name,  the  covenant  is 
void,  although  in  the  body  of  the  instrument  it  be  stated  that  it 
is  the  agreement  of  the  principal  by  A.  B.,  his  attorney,  that  the 
principal  covenants,  &c.,  and  in  the  in  testimoniutn  clause  that  A. 
B.,  as  the  attorney  of  the  principal,  hath  set  his  hand  and  seal. 
The  principals  not  being  bound,  the  other  party  is  discharged ; 
and  no  act  subsequently  done  by  the  covenantor  can  give  validity 
to  the  covenant  without  the  assent  of  the  covenantee.  But  when 
the  agent  as  such  does  an  act  in  pais,  though  in  his  own  name,  or 
enters  into  a  commercial  or  other  contract,  not  under  seal,  without 
subscribing  the  name  of  the  principal,  the  latter  is  bound  by  the 
act  of  his  agent.^ 

48.  Although  a  title-bond,  executed  by  an  agent,  be  insufficient 
to  bind  the  principal  at  law,  yet,  if  the  agent  were  authorized  and 
intended  to  bind  him,  a  specific  performance  may  be  decreed  in 

1  The  State  v.  Mayes,  23  Miss.  516.  3  Townsend    v.    Corning,   23    Wend. 

2  Bennett  v.   Smith,  10  Eng.  Law  &    435. 
Eq.  272. 


70  LAW  OF  VENDOES  AND  PUECHASERS.      [CHAP.  V. 

equity,  there  being  a  sufficient  note  or  memorandum  within  the 
Statute  of  Frauds.! 

49.  Two  tenants  in  common  of  a  tract  of  land,  which  was 
divided  into  two  lots,  having  put  the  same  up  for  sale  at  auction, 
one  of  them,  without  previous  knowledge  or  agreement  of  the 
other,  bid  off  and  became  the  purchaser  of  a  lot,  through  an  agent, 
who,  in  his  own  name,  but  declaring  that  he  was  acting  therein 
as  the  agent  of  such  purchaser,  signed  a  memorandum,  acknowl- 
edging to  have  purchased  such  lot,  and  agreeing  to  comply  with 
the  terms  of  sale.  In  a  bill  in  equity,  by  the  other  tenant,  to 
compel  his  co-tenant  to  receive  a  deed  from  him  of  an  undivided 
moiety  of  the  lot,  and  to  pay  therefor  one-half  of  the  auction  price  ; 
held,  there  was  no  sufficient  contract  in  writing,  or  memorandum 
of  such  contract.^ 

50.  A.  advertised  lands  to  be  let  for  three  lives  or  thirty-one 
years.  B.  made  proposals  for  them,  which  were  accepted,  and  an 
agreement  executed  between  B.  and  the  agent  of  A.,  in  which  the 
term  was  not  mentioned.  Held,  A.  was  not  bound  by  the  agree- 
ment. Also,  there  being  no  reference  in  the  agreement  to  the 
advertisement,  that  parol  evidence  could  not  be  received  to  connect 
the  one  with  the  other,  so  as  to  ascertain  the  term.^ 

51.  Bill  for  specific  performance.  One  of  the  defendants  pur- 
chased lands  at  auction,  declaring  himself  the  agent  of  the  other, 
in  his  presence ;  but  the  solicitor  of  the  vendor,  the  plaintiff, 
required  the  agent  to  sign  the  agreement,  and  refused  to  accept 
the  name  of  the  principal ;  but  subsequently  communications  took 
place  between  him  and  the  principal,  respecting  the  title.  Held, 
the  plaintiffs  had  not  substituted  the  principal  for  the  agent,  but 
the  agent  was  personally  liable.* 

52.  On  sale  of  premises  by  auction,  the  memorandum  of  the 
mutual  agreement  was  signed  by  the  auctioneer,  as  agent  for 
the  purchaser,  and  by  the  vendor's  attorney,  subscribing  himself 
"  as  agent  for  the  said  S.  S.,"  the  vendor.  The  purchaser  paid  his 
deposit  to  the  attorney,  who  gave  a  receipt  signed  by  himself  as 
"  agent  for  S.  S."  The  sale  going  off  through  the  vendor's  default, 
and  the  deposit  not  being  returned  ;  held,  the  purchaser  could  not 
bring  an  action  of  money  had  and  received  against  the  attorney,  he 

1  Johnson  v.  M'Gruder,  15  Mis.  365.  3  Clinan  v.  Cooke,  1  Scho.  &  L.  22. 
See  "Wood  v.  Goodridge,  6  Gush.  117.                *  Chadwick  v.  Maden,  12  Eng.  Law  & 

2  Gill  V.  Bicknell,  2  Gush.  355.  Eq.  180. 


CHAP,   v.]  PARTIES   TO   CONTRACTS.  71 

not  being  a  stakeholder,  but  merely  the  vendor's  agent,  and  pay- 
ment of  the  deposit  to  him  being  payment  to  the  vendor.^ 

53.  The  highest  bidder  for  certain  lands  sold  by  auction,  and  the 
plaintiff,  the  mayor  of  a  corporation  on  behalf  of  himself  and  the 
rest  of  the  burgesses  and  commonalty  of  the  borough,  the  vendors, 
signed  a  contract,  in  which  they  mutually  promised  to  fulfil  the 
conditions  of  sale  on  their  respective  parts.  The  conditions  stated 
the  title  of  the  corporation,  and  stipulated  that  they  should  convey, 
and  might  resell  on  default.  The  only  act  therein  mentioned,  to 
be  done  by  the  plaintiff,  was  the  receiving  the  deposit.  Held,  the 
plaintiff  could  not  maintain  an  action  in  his  individual  capacity 
against  the  purchaser  for  breach  of  this  contract.^ 

54.  One  party,  who  would  exonerate  himself  on  the  ground  of 
agency,  ought  to  show  that  he  communicated  it  to  the  other,  and 
acted  as  agent,  so  as  to  give  a  remedy  over  against  his  principal.^ 
So  one  who  has  made  a  contract  as  agent  for  a  third  person  cannot 
sue  as  principal,  without  giving  notice  to  the  defendant,  before 
action  brought,  that  he  is  the  party  really  interested.^ 

55.  The  defendant,  by  a  written  agreement,  expressed  to  be  made 
by  himself  on  behalf  of  A.  B.,  of  the  one  part,  and  the  plaintiff  of 
the  other  part,  stipulated  to  execute  a  lease  to  the  plaintiff  of  prem- 
ises proved  to  belong  to  A.  B.  Held,  the  defendant  was  personally 
liable.^ 

56.  An  alleged  principal,  though  not  originally  bound,  may  so 
ratify  a  sale  or  purchase,  as  to  become  liable  for  its  completion. 
And,  where  a  sale  made  by  an  agent  is  ratified  by  his  principals, 
the  agent's  representations,  made  at  the  time  of  the  sale,  bind  his 
principals. ^(a) 

57.  A.,  as  the  agent  of  B.,  the  owner  of  a  landed  estate,  enters 
into  an  agreement  for  the  sale  of  it  with  C,  who  appears  to  act  on 
his  own  account,  but  in  fact  is  the  agent  of  D. ;  and  A.  and  C.  bind 
themselves  in  a  penalty  for  the  performance  of  the  agreement. 
Whereupon  C.  pays  A.  part  of  the  purchase-money  as  a  deposit. 
Held,  that,  upon  a  breach  of  the  conditions  of  sale  on  the  part  of 

1  Bamford  v.  Shuttleworth,  11  Ad.  &  *  Bickerton  v.  Burrell,  5  Mau.  &  Sel. 
Ell.  926.  388. 

2  Bowen  v.  Morris,  2  Taunt.  374.  5  Norton  v.  Herron,  Ky.  &  M.  229. 

3  Maure  v.  Hefferman,  13  Johns.  ^  Doggett  v.  Emerson,  3  Story,  C.  C. 
58.  700. 

(a)  See  §  36. 


72  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  V. 

the  vendor,  an  action  for  money  had  and  received  lies  at  the  suit 
of  D.  against  B.,  to  recover  back  the  deposit,  without  proof  of  the 
money  being  paid  over  by  A.  to  B.^ 

58.  The  important  subject,  of  sales  of  real  property  at  public 
auction,  the  auctioneer  being  the  authorized  agent  of  the  seller,  and 
to  some  extent  of  the  purchaser  also,  will  properly  be  considered 
in  immediate  connection  with  the  foregoing  topic,  but  admits  and 
requires  a  separate  chapter. 

1  Duke,  &c.,  V.  Worthy,  1  Camp.  337. 


CHAP.   VI.]  SALES   BY   AUCTION.  73 


CHAPTER  VI. 


SALES   BY   AUCTION. 


1.  Forms  of  sale ;  sales  by  auction.  22.    Rights  and  duties  of  an  auctioneer. 

2.  What  is  an  auction;  eflect  of  a  bid;  29.  Statute  of  Frauds,  as  applied  to 
separate  estates ;  htting  by  auction.  auctions. 

12.     Puffing.  36.     Parol  evidence;  part-performance. 

18.    Combination  of  purchasers  to  reduce  40.    Deposit. 

the  price. 

1.  In  the  natural  succession  of  topics,  we  now  propose  to  consider 
in  what  form  contracts  for  the  sale  and  purchase  of  lands  are  re- 
quired by  law  to  be  made.  There  is,  however,  a  particular  class  of 
sales,  to  which  the  general  rules  upon  this  subject  do  not  directly 
apply,  and  which  may  therefore  be  more  properly  treated  of, 
before  proceeding  to  a  statement  of  those  rules ;  to  wit.  Sales  at 
Public  Auction. {a^  These  have  become  so  frequent  and  important 
a  mode  of  disposing  of  real  estate,  and  are  at  the  same  time  so 
distinguishable  in  form  and  effect  from  mere  private  transfers,  as 
to  have  called  for  the  establishment  of  a  set  of  legal  principles  quite 
peculiar  to  themselves,  and  of  great  practical  consequence.  Auc- 
tioneers being  also  agents,  the  subject  naturally  follows  that  of  a 
sale  and  purchase  by  agents,  which  was  considered  in  the  last 
chapter. 

2.  An  auction  is  defined,  as  "  a  public  sale  of  property  to  the 
highest  bidder."  ^     It  may  be  by  public  outcry,  or  otherwise. (6) 

1  1  Bouv.  Law  Diet.  141. 

(a)  In  many  cases,  this  is  the  only  of  paper,  and,  on  comparison,  the  highest 
lawful  mode  of  sale.  Thus  an  agent  or  bidder  to  be  declared  the  purchaser  at  the 
trustee,  simply  authorized  to  sell  l)y  pub-  lowest  of  his  sums,  if  exceeding  tlie  high- 
lie  auction  for  a  certain  sum,  cannot,  for  est  bid  of  any  other  person.  Held,  an 
any  price,  sell  at  private  sale.  Daniel  v.  auction,  under  St.  19  Geo.  HI.  ch.  56,  and 
Adams,  Ambl.  495 ;  8  Jur.  206.  the   penalty  incurred  for  selling  without 

(b)  A  woman  remained  silent  during  license,  though  the  purcliase  was  never 
the  whole  time  of  a  sale,  but  gave  a  glass  completed.  Hex  v.  Taylor,  McLel.  362 
of  brandy  to  every  bidder;  and,  upon  the  (p.  75,  n.). 

breaking  up  of  the  sale,  the  person  receiv-         The  agent  of  the  owner  of  an  estate 

ing  the  last  glass  was    taken  aside  and  put  it  up  at  auction,  first  in  a  number  of 

declared  the  purchaser.     Held,  an  auction,  lots  at  certain  prices.     No  bid  being  ob- 

1  Dow,  115.  tained,  he  offered  it  in  a  snialler  number 

At  an  auction  sale,  the  vendor  invited  of  lots,  at  other  prices.     Still  obtaining  no 

each  bidder  to  put  two  sums  upon  a  slip  bid,  he  withdrew  the  property.     Held,  this 


74  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

The  essential  part  is  the  selection  of  a  purchaser  from  a  number 
of  bidders.  But  questions  have  sometimes  occurred,  as  to  the 
precise  elements  necessary  to  constitute  this  peculiar  description  of 
contract.  Some  of  the  leading  cases  relating  to  real  property  will 
show  the  various  points  of  discussion  which  have  been  raised. 

3.  The  plaintiff,  an  auctioneer,  was  employed  to  sell  lands,  <fec., 
subject  to  the  following  (among  other)  conditions  of  sale :  1.  "  That 
the  vendors  having  caused  a  notice  to  be  delivered  to  the  auction- 
eer, autliorizing  one  A.  to  bid  for  the  premises  mentioned  in  a 
certain  particular,  the  same  should  not  be  considered  as  sold, 
unless  the  price  bid  hy  any  other  person  or  persons  should  exceed  the 
sum  bid  by  the  said  A.^'  2.  "  That  the  purchaser  of  each  lot  should 
pay  to  the  auctioneer  the  duty  granted  to  his  Majesty  on  the  sale 
of  real  estates,  over  and  above  the  purchase-money  for  each  lot." 
The  conditions  were  read  by  the  plaintiff,  in  the  hearing  of  the 
defendant,  a  bidder.  Defendant  bid  <£4,000  for  a  lot,  which  bid- 
ding was  then  taken  down  by  the  plaintiff  in  his  catalogue,  without 
adding  the  name  of  the  defendant.  The  plaintiff  postponed  the  sale, 
and  went  to  other  lots,  saying  aloud,  he  did  so,  "  to  give  gentlemen 
time  to  consider."  In  less  than  an  hour,  he  declared,  in  defend- 
ant's hearing,  that  he  was  going  back  to  the  lot,  and  to  defendant's 
bidding,  that  it  was  an  open  sale  as  to  the  same  lot,  and  that  he 
would  give  two  minutes'  time  to  consider  ;  and,  unless  there  was  an 
advance,  he  would  knock  it  down  to  the  defendant  at  X 4,000. 
The  defendant  then  said,  but  not  so  loud  as  to  be  heard  by  the 
plaintiff,  that  he  would  not  have"  it.  There  being  no  advance, 
the  lot  was  knocked  down  to  the  defendant;  who  thereupon  re- 
fused to  complete  the  purchase,  or  to  sign  a  memorandum.  A. 
had  made  no  bidding.  Held,  assumpsit  did  not  lie  to  recover  the 
auction-duty,  which  the  plaintiff  had  paid  to  the  crown,  against 
the  defendant,  as  purchaser,  or  as  highest  bidder,  or  as  a  higher 
bidder  than  A.,  according  to  the  condition  of  sale.^ 

4.  The  agent  of  the  owner  of  an  estate  to  be  sold  at  auction 
attends  at  the  place  and  time  of  sale  ;  mentions  the  upset  price, 
but  not  bidders ;  and  gives  notice  that  he  will  be  ready  to  treat  for 

1  Jones  V.  Nanney,  McClelland,  25. 

was  not  a  bidding  of  the  owner  by  his  was   merely  the  termums  from  which   a 

agent,  which  subjected  the  party  to  pay-  bidding  commenced.    Cruso  v.  Crisp,  3  E. 

ment  of  a  duty,  for  want  of  notice  to  the  337. 
auctioneer  of  his  agency.    The  upset  price 


CHAP.  VI.]  SALES  BY  AUCTION.  75 

a  sale  by  private  bargain.  Soon  after,  he  is  called  into  a  private 
room  by  some  of  those  who  attended  at  the  public  meeting,  and 
they  give  him  offers  in  writing.  He  engages,  before  inspecting  the 
offers,  that  the  highest  offer  shall  be  accepted ;  and  it  is  accepted 
accordingly.  Held,  that  where  the  contract  is  with  various  per- 
sons, with  an  engagement  to  let  the  highest  bidder  be  the  purchaser, 
or  to  accept  the  highest  offer,  it  is  a  sale  at  auction  for  the  purposes 
of  the  acts,  of  17th  Geo.  HI.  ch.  50,  and  19th  Geo.  III.  ch.  56.1(a) 

5.  By  the  General  Turnpike  Act,  the  trustees  were  empowered 
to  let  the  tolls  by  auction ;  but,  to  prevent  undue  preference,  a 
minute-glass  was  to  be  turned  thrice  after  each  bidding  ;  and,  if  no 
other  person  bid,  the  last  bidder  to  be  the  farmer  or  renter.  Trus- 
tees under  this  act  put  up  tolls  subject  to  other  conditions,  one  of 
which  was,  that,  unless  there  should  be  three  biddings,  there 
should  be  no  letting,  unless  the  trustees  thought  proper  to  take 
less  than  three  biddings,  and  that  they  should  have  a  reserved 
bidding.  The  plaintiff  made  the  only  bid  ;  whereupon  the  trustees 
declared,  that,  if  there  was  no  advance,  they  should  be  obliged  to 
make  a  reserved  bidding.  The  minute-glass  was  turned  tlirice, 
and  there  was  no  further  bidding.  Tlie  plaintiff  filed  his  bill  for 
specific  performance,  but  the  bill  was  dismissed,  without  costs.^ 

6.  A  testator  directed  by  his  will,  that  bis  land  should  be  sold  at 
auction.  It  was  accordingly  advertised  for.  sale,  and  A.  offered  by 
letter  a  certain  sum,  and  no  other  person  bid  as  much,  and  the 
land  was  afterwards  conveyed  to  A.     Held,  a  sale  at  auction.-^ 

7.  Upon  the  point,  at  what  particular  time  a  sale  by  auction  is 
completed ;  it  is  held,  that  a  bidder  at  an  auction  under  the  usual 
conditions,  that  the  highest  bidder  shall  be  the  purchaser,  may 
retract  his  bidding  any  time  before  the  hammer  is  down.*     But 

^  Walker  v.  Advocate-General,  1  Dow,  ^  Tyree  v.  Williams,  3  Bibb,  868.     See 

111.  Minturn  v.  Allen,  3  Sandf.  50. 

2  Levy  V.  Pendergrass,  2  Beav.  415.  *  Payne  v.  Cave,  3  Term  Rep.  148. 

(a)  A  sale  was  appointed  for  two  cer-  piece  of  paper ;   and  whoever  sliould  be 

tain  days,  by  public  advertisement,  for  the  found,  on  giving  in  those  pieces  of  paper, 

disposal  of  a  house  and  furniture  ;   but,  to  have  written  the  largest  sum,  was  to  be 

some  of  the  furniture  not  being  tlien  sold,  declared  tlie  purchaser.     This  was  lield  to 

an  announcement  was  made  to  the  com-  be  a  mode  of  sale  at  auction,  witliin  the  19 

pany  assembled,  that,  at  a  future  day  then  Geo.  III.  ch.  36,  sect.  3  and  4  ;  and  it  was 

named  for  that  purpose,  the  whole  of  the  held,  tiiat  the  person  wlio  had  so  conducted 

remainder  would  be  sold.     The   persons  the  sale  had  incurred  the  penalty  of  £100 

who  attended  upon  the  second  occasion,  thereby  imposed,  for  having  acted  as  an 

and  were    desirous   of  purchasing,   were  auctioneer,    without    first    taking    out    a 

directed  to  retire  to  another  room,  where  license.     Attorney-General  v.  Taylor,  13 

each  was  to  write  two  different  sums  on  a  Price,  636.     (p.  73,  n.) 


76  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

where  one  bids,  at  auction,  though  for  another,  but  does  not,  at  the 
time  the  lot  is  knocked  down  to  him,  nor  on  the  day  of  sale,  disclose 
to  the  owner,  nor  to  the  auctioneer,  the  name  of  his  principal,  he 
is  responsible  as  the  purchaser.^ 

8.  Where  several  lots  are  knocked  down  to  a  bidder,  and  his 
name  marked  against  them  in  the  catalogue,  a  distinct  contract, 
both  in  law  and  fact,  arises  for  each  lot ;  and  a  memorandum 
signed  afterwards  by  him,  stating  that  he  agrees  to  become  the 
purchaser  of  the  several  lots  set  against  his  name,  does  not  require 
a  stamp,  though  the  aggregate  exceed  £20  in  value,  no  single  lot 
being  of  that  price.^  In  such  case,  in  a  special  action  for  refusing 
to  adhere  to  the  conditions  of  sale,  the  plaintiff  cannot  consolidate 
the  contracts.'^ 

9.  An  auctioneer  sold,  by  request  of  the  owner,  different  lots  of 
standing  wood,  part  of  them  lying  out  of  his  county,  and  which 
therefore  it  was  illegal  for  him  to  sell.  The  purchasers  took  the 
wood,  and  paid  the  owners  therefor,  and  the  auctioneer  afterwards 
paid  the  duty  on  the  whole  sales.  Held,  he  might  recover  the 
amount  of  such  duty  from  the  owner,  in  an  action  for  money 
paid.4 

10.  Estates  may  be  let  or  leased,  as  well  as  sold,  by  auction. 
This  is  sometimes  done  by  order  of  Court.  Upon  a  letting  under 
the  Court,  the  person  declared  highest  bidder  will  not  be  discharged 
from  his  bidding,  though  it  was  at  a  great  overvalue,  and  was  by 
an  agent,  who  appeared  to  have  misapprehended  the  intention  of 
his  instructions.  But  the  lands  may  be  set  up  again,  upon  the 
bidder's  undertaking  to  pay  all  costs  occasioned  by  a  reletting,  and 
to  recognize  for  payment,  yearly,  during  the  term,  of  a  sum  to  be 
settled  by  the  master,  by  way  of  compensation  for  the  loss  of  rent 
by  letting.  Where  the  bidding  was  X261  per  annum,  and  was 
excessive,  the  Court  ordered,  upon  consent,  that  the  bidder  be 
deemed  tenant  at  X200,  and  take  out  leases  at  that  rent,  &g.^ 

11.  St.  1822,  ch.  87  (Massachusetts),  imposing  a  duty  on  sales 
by  auction,  does  not  embrace  a  lease  thus  made.  Such  statutes, 
imposiijg  restrictions,  or  levying  an  excise  or  tax  upon  common 
occupations,  are  to  be  construed  strictly.     Here  there  is  nothing 

1  McCombv.  Wright,  4  Johns.  Ch.  6.59.  3  James  v.  Shore,  1  Stark.  Ca.  426. 

2  Roots   V.  Lord  "Dormer,  4   Barn.   &  *  Robinson  v.  Green,  3  Met.  159. 
Adol.  77 ;  Emmerson  v.  Heelis,  2  Taunt.  5  Coote  v.  Coote,  2  Ir.  Eq.  R.  159. 
38. 


CHAP.  VI,] 


SALES  BY  AUCTION. 


77 


sold  by  auction ;  the  estate  not  existing,  which  it  was  the  object 
of  the  sale  to  fix  a  price  for.^ 

12.  We  shall  hereafter  have  occasion  to  inquire,  how  a  sale  or 
purchase  of  land  is  rendered  void.  There  is,  however,  one  reason 
for  avoiding  sales  at  auction  not  applicable  to  others,  and  which 
may  therefore  be  properly  considered  in  this  connection.  We  refer 
to  the  use  of  means  on  the  part  of  the  vendor  or  the  purchaser, 
unknown  at  the  time  to  the  other  party,  to  raise  or  reduce  the 
price  of  the  property  sold.  Upon  this  subject,  numerous  cases  are 
found  in  the  books. («) 

13.  It  may  be  stated,  as  the  general  rule,  that  if  the  owner,  or 
one  of  the  owners,  or  his  agent,  of  an  estate  put  up  at  auction, 
employ  puffers,  or  hy-bidders,(h)  to  bid  for  him  without  declaring 
it ;  this  is  a  fraud  on  the  real  bidders,  and  the  highest  bidder  cannot 
be  compelled  to  complete  the  contract,  or  may  maintain  a  bill  in 
equity  to  set  it  aside.^(c)     Notice  may  be  given,  that  the  property 


1  Sewall  V.  Jones,  9  Pick.  412. 

2  Howard  v.  Castle,  6  Term  Rep.  642  ; 
Crowden  v.  Austin,  3  Bing.  368 ;  Towie 
V.  Leavitt,  3  Fost.  360 ;  Twining  v.  Mor- 
rice,  2  Bro.  C.  826.    See  Smitli  v.  Clarke, 

{a)  Tlie  leading  case,  perliaps,  upon 
this  subject  is  Bexwell  v.  Christie,  Cowp. 
395,  where,  the  owner  of  a  horse  to  be 
sold  at  auction  having  directed  the  auc- 
tioneer not  to  sell  it  under  a  certain 
sum ;  it  was  held,  that  no  action  would  lie 
against  the  auctioneer  for  violating  this 
direction,  because  it  would  be  illegal  to 
obey  it ;  otherwise,  if  the  direction  was, 
not  to  put  up  the  horse  under  a  certain 
sum.  In  this  case,  Lord  Mansfield  re- 
marked, upon  the  practice  of  employing 
bidders  for  the  owner,  that  the  frequency 
of  such  practice  was  no  argument  in  its 
favor ;  for  the  same  might  be  said  of 
gaming,  stock-jobbing,  and  swindling. 
In  another  case,  —  Howard  v.  Castle,  6 
T.  R.  642,  —  Lord  Kenyon  uses  the  strong 
language  :  "  The  whole  transaction  is  bot- 
tomed in  fraud  ;  it  is  fraud  from  beginning 
to  end.  The  whole  of  Lord  Mansfield's 
reasoning  is  founded  on  the  noblest  prin- 
ciples of  morahty  and  justice,  and  calcu- 
lated to  preserve  honesty  between  man 
and  man."  He  further  remarks,  that,  if 
this  had  been  the  first  case,  perhaps  he 
should  have  hesitated ;  but  "  Lord  ^lans- 
field's  comprehensive  mind  saw  it  in  its 
true  colors." 

On  the  other  hand,  in  the  case  of  Twi- 
ning V.  Morrice,  2  Bro.  331,  Kenyon,  M.R., 
says,  "  I  do  not  say  the  doctrine  in  Bex- 


12  Ves.  476  ;  Bowles  v.  Round,  5  Ves. 
508;  Fairfax  v.  Muse,  4  Munf  124;  Hazal 
V.  Dunham,  1  Hall,  146  ;  Millar  v.  Camp- 
bell, 3  Marsh.  526 ;  Donaldson  v.  McRoy, 
1  Browne,  346. 

well  V.  Christie  is  wrong ;  but  everybody 
knows  that  such  persons  are  constantly 
employed."  So  in  Conolly  v.  Parsons,  3 
Ves.  625,  n.,  the  Lord  Chancellor  re- 
marked, that  Bexwell  v.  Christie  turned 
upon  the  fact  that  there  was  no  real  bid- 
der, and  the  purchaser  refused  instantly 
to  complete  tlie  contract.  It  was  a  trap- 
auction.  "  The  reasoning  goes  /arge,  and 
does  not  convince  one.  It  would  reduce 
every  thing  to  a  Dutch  auction,  a  bidding 
downwards."  The  rule  has  also  been 
questioned  by  Sir  William  Grant  and 
Lord  Roslyn. 

The  plaintiff  and  B.  were  appointed  by 
the  will  of  C.  trustees  to  sell  his  lands, 
They  were  accordingly  sold  at  auction, 
after  public  notice.  D.,  the  plaintifl"s 
counsel,  bid  =£1,7-50,  and  the  defendant 
i^l,751.  D.  was  a  by-bidder  of  the  trus- 
tees, who  declared  he  did  not  want  the 
land,  and  advised  the  defendant  to  purchase 
it.  Held,  if  the  defendant  had  no  notice 
of  D.'s  being  thus  employed,  and  if  D.  bid 
in  order  to  enhance  the  price  for  the  benefit 
of  the  trustees,  the  sale  was  void.  Mon- 
crieS";;.  Goldsborough,  4  liar.  &  M'H.  281. 
(6)  Or  only  one,  to  bid  up  to  a  certain 
sum,  unless  announced.  Wheeler  v.  Col- 
lier, 1  Moo.  &  M.  123. 

(c)  It  has  been  held,  that  the  sale  can- 
not be  objected  to  on  this  ground  (puffing) 


78 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 


will  be  put  up  at  a  certain  price,  or  that  the  owner  reserves  to 
himself  one  bid.^  And,  in  case  of  the  sale  of  property  of  an  infant, 
there  should  be  a  reserved  bidding.2(a)  The  employment  of  a 
puffer  vitiates  the  sale,  even  though  the  property  brought  no  more 
than  its  general  value  ;  ^  and  the  rule  more  especially  applies, 
where  all  the  bidders,  except  the  purchaser,  are  by-bidders,  se- 
cretly employed  by  the  seller,  and  the  judgment  of  the  purchaser 
is  improperly  influenced  by  their  bids  ;  *  but  not  unless  the  buyer 
was  thereby  induced  to  bid  more  than  the  value  of  the  property,  or 


1  Towle  V.  Leavitt,  3  Post.  360. 

2  Cutts  V.  Salmon,  12  Eng.  Law  &  Eq. 
316. 

in  a  suit  for  the  price  against  the  pur- 
chaser, but  only  by  an  action  on  the  case 
or  bill  in  equity.  Millar  v.  Campbell,  3 
Marsh.  526. 

(a)  An  agreement,  by  an  administrator 
or  guardian,  to  offer  the  real  estate  of  his 
intestate  or  ward  for  sale  by  auction,  and 
to  sell  the  same  to  a  particular  individual 
for  an  agreed  price,  provided  no  higher 
sum  should  be  bid,  is  valid.  But  such  an 
agreement  to  sell  the  estate  at  a  fixed 
price,  without  regard  to  the  biddings,  is 
fraudulent  and  void.  Hunt  v.  Frost,  4 
Cush.  54. 

An  agent  for  the  complainants,  in  a 
foreclosure  suit,  may  bid  for  his  principals 
in  his  own  name,  without  giving  notice 
of  it  to  other  bidders.  If  lie  does  this 
without  disclosing  it  to  the  Master,  he  is 
personally  responsible.  The  principle 
upon  which  the  employment  of  puffers  is 
disallowed,  is,  that  they  are  not  real  bid- 
das,  but  the  instruments  of  the  vendor  to 
deceive  the  other  bidders.  But  the  prin- 
ciple is  not  applicable  to  a  Master's  sale 
of  property  under  a  decree,  where  the 
complainant  is  authorized  to  bid  upon  the 
property  at  the  sale,  and  is  bound  to  take 
it  if  bid  off  by  him  or  by  his  agent  duly 
authorized.  National  Fire  Insurance  Co. 
V.  Loomis,  11  Paige,  431.  So  at  a  sale 
by  order  of  Court,  a  reserved  bidding 
was  allowed  as  a  condition ;  the  Master 
to  fix  the  amount,  and  to  use  his  discre- 
tion in  communicating  it.  Jervoise  v. 
Clarke,  Jac.  &  W.  389. 

Where  the  sale  of  a  mortgagee,  under 
an  order  of  court,  is  declared  by  the  auc- 
tioneer to  be  without  reserve,  but  he  also 
declares  that  the  parties  interested  are  at 
liberty  to  bid  ;  the  second  statement  is  to 
be  construed  as  a  qualification  of  the  first; 
the  purchaser,  notwithstanding  his  de- 
nial, is  presumed  to  have  heard  them,  sev- 
eral other  witnesses  having  heard  them  ; 


3  Staines  v.  Shore,  16  Penn.  200. 

4  Veazie  v.  Williams,  3  Story,  611. 


and  specific  performance  will  be  decreed 
against  him.  So  held,  in  a  case  where 
the  price  was  increased  from  .£14,000  to 
£19,000  by  biddings  between  the  mort- 
gagee and  purchaser  alone.  Dimmock  v. 
Hallett,  Law  Eep.  (Eng.)  Eq.  Jan.  1867, 
p.  21. 

The  conditions  of  an  auction  stating 
that  the  highest  bidder  should  be  the  pur- 
chaser, an  agent  of  the  owners  bid  .£2,500 ; 
the  auctioneer  then  bid  £2,600 ;  and  the 
two  continued  to  bid  against  each  other, 
up  to  £3,600,  when  the  defendant  bid  £50 
more,  and  was  declared  the  purchaser. 
A  bill  for  specific  performance  was  dis- 
missed. Mortimer  v.  Bell,  Law  Rep. 
(Eng.),  Jan.  1866,  p.  9. 

Lord  Cranworth,  L.C.,  in  remarking 
upon  the  rule  of  law,  that  a  vendor  cannot 
bid  upon  the  property  unless  the  right  is 
expressly  reserved,  and  the  contrary  rule 
which  Courts  of  Equity  seem  to  have 
often  adopted,  proceeds  to  say :  "  Here 
there  were  in  effect  two  persons  bidding 
for  the  vendors.  The  whole  sale,  up  to 
the  bidding  of  £3,600,  was  a  mere  fiction. 
When  the  vendor  retains,  either  by  express 
stipulation  or  by  implied  usage,  a  right  to 
bid  by  an  agent  up  to  a  fixed  price,  no  real 
bidder  can  be  deceived  by  such  bidding. 
Every  bidding  may  be  treated  as  a  state- 
ment made  by  the  auctioneer,  acting  as 
agent  of  the  vendor,  that  an  advance  has 
been  offered.  But  how  does  that  apply 
where  there  were  two  persons  bidding  for 
the  vendor?  When  Webb  bid  £2,500, 
the  object  of  the  vendors  to  prevent  a 
sale  at  a  price  less  than  £4,000  might  have 
been  fully  secured  without  any  further 
bidding.  The  auctioneer  had  only,  after 
waiting  a  reasonable  time,  to  knock  the 
property  down  to  Webb  as  the  only  bid- 
der. It  was  a  false  statement,  that  up  to 
£3,600,  or,  at  all  events,  up  to  £3,500, 
there  was  a  real  bidder."     Ibid.  p.  14. 


CHAP.   VI.]  SALES   BY   AUCTION.  79 

more  than  he  had  previously  determined  to  bid.i  So  wlicn  tliere 
are  real  as  well  as  sham  bidders,  and  the  last  bid  before  the  pur- 
chaser's is  a  real  one,  and  the  judgment  of  the  real  bidders  and 
the  purchaser  has  not  been  blinded  by  the  sham  bidders ;  the  sale 
is  YQ.\id.\a)  Thus,  at  an  auction  sale,  a  person  bid  for  the  vendor 
£75  per  acre,  upon  private  notice  to  the  auctioneer.  After  a  con- 
test with  bond  fide  bidders,  the  property  was  sold  for  over  £101 ; 
and,  some  days  afterwards,  the  vendee  paid  the  duty.  Held,  the 
sale  was  binding.^  And  to  employ  a  person  to  "bid  in"  for  the 
owner  does  not  necessarily  vitiate  an  auction  sale,  if  the  price  is  not 
intended  to  be  thereby  enhanced  beyond  a  fair  value ;  and  whether 
the  by-bidder  be  employed  in  good  faith  to  prevent  a  sacrifice,  or 
simply  to  enhance  the  price  by  a  pretended  competition,  is  a  ques- 
tion for  the  jury.* 

14.  The  circumstance  that  a  person  bid  under  the  private 
direction  of  the  vendors,  for  the  purpose  of  preventing  a  sale 
under  a  sum  specified  as  the  value,  is  no  objection  to  a  specific 
performance,  especially  where  the  vendors  were  assignees  in  bank- 
ruptcy, and  the  purchaser  was  not  present,  but  purchased  by  an 
agent.^ 

15.  The  general  rule  applies  to  a  shej-iff's  sale.^  Thus  the  em- 
ployment of  a  puffer  at  a  sale  of  property  seized  under  an  extent, 

1  Tomlinson  v.  Savage,  6  Ired.  Eq.  430.         5  Smith  v.  Clarke,  12  Ves.  476. 

2  Veazie  v.  Williams,  3  Story  R.  611.  ^  Donaldson  v.  McRoy,  1  Browne,  346. 

3  Bramley  v.  Alt,  3  Ves.  620.  See  n.  (a). 
*  Reynolds  v.  Decliauras,  24  Tex.  174. 

(a)  Where  two  parties  enter  into  a  per  acre,  after  which  the  bidding  was  con- 
wager  as  to  the  price  of  opium  at  a  certain  fined  to  the  puffer  and  the  defendant,  who 
sale,  each  knowing  that  the  other  would  purchased  at  §44.  The  latter  was  a  good 
use  means  to  influence  the  price,  it  is  no  judge  of  the  land,  lived  in  the  neighbor- 
fraud  on  one,  that  the  other  thus  raises  hood,  and  was  acquainted  with  the  prem- 
the  price.  Doolubdass  v.  RamloU,  3  Eng.  ises,  while  the  by -bidder  enjoyed  none  of 
Law  &  Eq.  39.  these  advantages.     The  latter  also  cora- 

So  employing  agents  to  bid  for  such  municated  openly  with  thd  owner.     The 

a  purpose  is  not  an  unlawful  conspiracy,  property   was  an  old  family  seat,  which 

Ibid.  was  sold  with  reluctance,  and  merely  for 

So,  if  one  has  a  right  to  purchase  a  the  purpose  of  effecting  a  division,  and 
certain  quantity  of  opium  at  a  sale,  no  for  which,  therefore,  the  owner  was  justi- 
fraud  on  the  vendors  is  committed  by  fied  in  securing  a  large  price.  Specific 
bribing  the  agent  of  A.  to  exercise  that  performance  was  decreed  against  the  de- 
right.     Ibid.  fendant.     Jenkins  v.  Hogg,  2  Const.  S.C. 

It  has  been  held,  in  South  Carolina,  821. 
that  the  employment  of  a  bidder  for  the  It  has  been  held,  in  a  late  case  in  Mis- 
vendor  is  not  illegal,  though  no  notice  be  souri,  that  it  is  not  fraudulent  for  a  debtor 
given,  and  the  price  be  thereby  very  much  to  employ  a  person  to  buy  in  his  jiroperty 
enhanced.  Thus,  at  a  sale  of  land,  there  at  sheriff's  sale,  merely  to  prevent  a  sacri- 
were  bond  Jide  bidders  up  to  §18  or  §20  fice.     Lee  v.  Lee,  'J  Mis.  420.     See  §  15. 


80  LAW  OP  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

by  an  agent  of  the  Crown,  to  whom  a  bidding  is  .reserved  by  the 
conditions  of  sale,  vitiates  the  sale.^ 

16.  The  misconduct  of  the  purchaser  does  not  preclude  him 
from  objecting  to  the  employment  of  a  puffer.^  But  it  is  the  duty 
of  the  purchaser  to  return  the  property  as  soon  as  the  fraud  is 
discovered,  unless  it  is  too  late  to  do  so.^  In  case  of  by-bidding, 
the  purchaser,  immediately  upon  the  discovery  of  it,  must  elect  to 
rescind,  or  abide  by  the  purchase.  Thus  where  land  was  sold  as 
containing  a  gold  mine,  and  a  by-bidder  employed  by  the  sellers 
to  enhance  the  price,  and  the  purchasers  brought  a  bill  to  rescind, 
twelve  months  or  more  after  notice  of  this  fact,  in  the  mean  time 
having  continued  to  work  and  explore  the  land  ;  held,  they  were 
barred  by  lapse  of  time.^  So  certain  mill  privileges  of  the  defend- 
ants were  sold  at  auction  by  H.,  as  their  agent,  to  the  plaintiff. 
After  five  years,  when  the  property  had  greatly  deteriorated,  the 
plaintiff  brings  a  bill  in  equity,  charging  that  H.  had,  by  sham 
bids,  fraudulently  enhanced  the  price  far  beyond  the  real  value 
of  the  property,  but  not  charging  the  defendants  with  knowledge 
and  connivance  with  him  at  the  time  of  the  sale.  Held,  as  the 
false  bidding  by  the  auctioneer  was  unauthorized  by  the  seller,  it 
would  not  avoid  the  sale,  although  it  would  be  good  ground  of 
action  against  the  auctioneer  for  damages ;  that  H.  ought  to  have 
been  made  a  party  to  the  bill ;  and  that  the  lapse  of  time  was, 
under  the  circumstances,  a  bar  to  the  suit.^ 

17.  By-bidding  may  avoid  a  sale  as  to  part  only  of  the  property 
sold.  Thus,  at  a  sale  by  auction  under  the  decree  of  the  Orphans' 
Court,  A.,  one  of  the  parties  interested,  bid,  to  raise  the  price,  on 
one  tract,  and  B.,  the  agent  of  C,  another  party  interested,  bid  for 
C,  whose  purchase  would  not  have  been  void,  but  voidable,  upon 
another.  Held,  the  sale  of  the  former  tract  was  void,  but  that  of 
the  latter  was  valid.^ 

18.  While  the  rule  above  stated  has  been  adopted  for  the  protec- 
tion of  jyurcJiasers,  another,  and  the  converse  of  the  former,  is 
applied  for  the  benefit  of  vendors.  Auction  sales  (particularly 
those  made  by  a  sheriff)  are  said  to  be  founded  upon  the  idea  of 
fair  competition.     And  as  the  employment  of  puffers  is  a  fraud 

i  Rex  V.  Marsh,  3  Y.  &  Jerv.  331.  5  Veazie  v.  Williams,  3  Story's  Rep. 

2  Ibid.  611 ;  Tomlinson  v.  Savage,  6  Ired.  Eq. 

3  Staines  v.  Shore,  16  Penn.  200.  430. 

4  McDowell  V.    Simms,   1  Busb.  Eq.         ^  Pennock's  Appeal,  14  Penn.  446. 
(N.C.),  130. 


CHAP.  VI.] 


SALES    BY   AUCTION. 


81 


upon  the  vendee;  so  an  association  of  bidders,  dcsii^ncd  and  calcu- 
lated to  stifle  competition,  chill  the  sale,  and  depress  the  price 
below  the  fair  market  value,  it  being  agreed  that  one  shall  buy  for 
the  benefit  of  all,  is  a.  fraud  upon  the  vendor^  as  well  as  a  fraud  upon 
the  laiv  and  against  public  policy,  and  avoids  the  sale  even  at  law  ; 
so  that  a  deed  executed  in  consequence  of  it  conveys  no  title.^  It 
has  even  been  held  an  indictable  conspiracy.^  (a) 


1  Smith  V.  Greenlee,  2  Dev.  \'2Q; 
Martin  v.  Raulett,  5  Rich.  541 ;  Piatt  v. 
Oliver,  1  McL.  295 ;  Phippen  v.  Stickney, 
3  Met.  384;  Switzer  v.  Skiles,  3  Gilm. 
529 ;  Gardiner  v.  i\Iorse,  25  Maine,  140 ; 


Jones  V.  Caswell,  2John.s.  Cas.  29;  Tlionip- 
son  V.  Davis,  13  Johns.  112;  Loyd  v.  Ma- 
lone,  23  111.  48. 

■^  Levi  V.  Levi,  6  Car.  &  P.  239. 


((/)  So  a  sale  of  mortgaged  land  by 
Commissioners  in  Chancery  ought  to  be 
set  aside,  and  another  decreed,  ujion  its 
appearing  to  the  Court  that  the  highest 
bidder  had  previously  agreed  with  a  pur- 
chaser from  the  mortgagor,  tliat  he  would 
allow  such  purchaser  to  redeem  the  land 
within  a  limited  time,  by  repaying  him 
his  money  with  interest ;  and  that,  such 
agreement  being  known  at  the  sale,  other 
persons  were  induced  to  refrain  from  bid- 
ding, and,  consequently,  the  land  was 
struck  off  at  a  price  inferior  to  its  value. 
Wood's  Executor  v.  Hudson,  5  Munf. 
423. 

"Where  one  is  buying  for  himself,  at  a 
slieritF's  sale,  but  falsely  declares  that  his 
purchase  shall  enure  to  the  benefit  of  the 
debtor  or  his  family,  and  this  is  a  mere 
trick  to  prevent  competition,  he  acquires 
no  title.  But  for  a  bidder  to  say  that  he 
intends  to  give  the  property  purchased  to 
the  debtor,  or  let  him  redeem  it,  when 
such  is  really  his  intention,  is  no  fraud. 
To  make  a  purchase  void,  it  must  be 
proved  that  the  property  was  obtained  at 
an  undervalue,  and  by  means  of  a  false 
representation.  Dick  v.  Lindsay,  2  Grant, 
431. 

A  purchaser  at  a  sale  made  under  a 
power  in  a  mortgage,  who,  when  bid 
against,  expostulates  with  a  rival  bidder, 
informing  him  of  his  losses,  and  telling 
him  that  on  account  of  them  he  ought  not 
to  bid  against  him,  therel)y  causing  the 
bidder  to  withdraw,  and  obtaining  the 
land  at  a  considerable  undervalue ;  will 
not  be  allowed  to  retain  his  purchase, 
against  a  subsequent  mortgagee,  who 
seeks  to  redeem  the  first  mortgage.  Fen- 
ner  v.  Tucker,  6  R.I.  551. 

So  an  agreement  by  the  owner  of  an 
execution,  on  which  lands  to  an  amount 
in  value  far  exceeding  the  debt  had  lieen 
seized,  to  prevent  the  usual  competition 
at  the  sherifi"'s  sale,  and  in  order  to  leave 


a  balance  due  on  the  execution,  for  the 
purpose  of  having  lands  of  the  debtor,  in 
other  counties,  seized  and  sold,  is  fraudu- 
lent ;  and  the  execution  is  deemed,  in  law, 
satisfied.  Troup  v.  Wood,  4  J(jhns.  Ch. 
228.  See  Hamburgh  v.  Edsall,  1  Ilalst. 
Ch.  249,  658.  So  A.,  being  indebted  to 
B.,  mortgaged  to  him  certain  i)roperty, 
which  was  levied  on  by  C.  under  an  exe- 
cution. Before  the  sale,  A.  agreed  by 
parol  witli  C,  that  C.  should  bid  in  the 
property  at  the  amount  of  the  execution, 
and  give  A.  time  to  redeem  it  for  the  ben- 
efit of  B.  Other  persons,  friends  of  A., 
who  were  also  present  at  the  sale,  did  not 
bid,  relying  on  this  agreement.  Held,  on 
a  bill  in  equity  to  enforce  the  agreement, 
that  it  was  not  within  the  Statute  of 
Frauds,  so  as  to  prevent  its  execution  by 
a  Court  of  Equity ;  but,  whether  it  was 
valid  or  not,  that  this  sale  could  not  be 
ratified,  as  there  were  parties  present,  who 
were  kept  from  bidding  by  their  knowl- 
edge of  the  agreement.  Rose  v.  Bates, 
12  Mis.  30. 

A  plantation,  worth  at  least  $40,000, 
was  ordered  by  the  Court  of  Chancery  to 
be  sold,  to  satisfy,  in  tlieir  order,  four 
mortgages,  given  to  secure  debts  amount- 
ing to  $80,000.  The  first  mortgage  was 
owned  by  B.,  and  secured  a  debt  of  822,- 
000,  and  the  last  was  owned  by  N.,  his 
debt  being  ^IT.OOO.  B.  also  had  an  unse- 
cured debt  against  the  mortgagor  of 
§16,000.  N.  had  determined,  if  necessary 
to  secure  his  debt,  to  bid  the  property  up 
to  $50,000 ;  and,  this  coming  to  the  knowl- 
edge of  B.,  he  proposed  that,  if  N.  would 
not  bid  against  liim,  and  if  he  should  pur- 
chase the  i)lantation  at  or  uniler  $30,000, 
he  would  secure  N.'s  debt  —  the  agreement 
to  be  at  an  end  if  the  biddings  went  over 
$30,000.  This  was  acceded  to,  and  at  the 
sale  B.  bid  otf  the  property  at  $11,000.  B. 
had  entered  into  an  arrangement  before 
the  sale,  if  he  became  purchaser,  to  sell  the 


82  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VI. 

19,  There  arc  cases,  however,  which  somewhat  qualify  the  general 
principle  al:)ove  stated.  Thus  it  is  held,  that  a  sale  is  not  invalid, 
when  an  association  of  bidders  has  for  its  object  a  fair  competition, 
and  is  formed  because  one,  from  the  magnitude  of  the  purchase  or 
the  like,  cannot  bid  on  his  own  account.  So  if  the  purpose  be  to 
enable  each  of  the  parties  to  become  a  purcliaser,  when  he  desires 
a  part  of  the  property  only,  or  any  other  honest  and  reasonable 
purpose. 1  So  it  has  been  held,  that  sales  on  execution  are  distin- 
guishable in  this  respect  from  voluntary  sales,  and  especially  sales 
of  public  lands,  made  at  public  auction  by  the  United  States  ;  and, 
it  is  said,  that  an  association  of  individuals  cannot  purchase  at  such 
sales,  is  a  novel  doctrine.  So  it  has  been  held,  that  lien  creditors, 
as  well  as  others,  may  purchase  jointly,  even  at  sheriff's  sales,  if 
all  be  open  and  fair.  A  combination  of  interests  for  that  purpose 
is  not  necessarily  corrupt.  It  is  the  end  to  be  accomplished,  which 
makes  such  a  combination  lawful  or  otherwise  ;  if  it  be  to  depress 
the  price  of  the  property  by  artifice,  the  purchase  will  be  void  ;  if 
it  be  to  raise  the  means  of  payment  by  contribution,  or  to  divide 
the  property  for  the  accommodation  of  the  purchasers,  it  will  be 
valid.2  So,  an  agreement  between  A.  and  B.,  that  B.  will  permit 
A.  to  buy  a  tract  qf  land  which  is  to  be  sold  at  auction,  and  that  A. 
will  buy  it,  and  convey  a  certain  part  thereof  to  B.  at  an  appraise- 
ment to  be  made  by  persons  named  in  the  agreement,  is  not,  on  the 
face  of  it,  void  for  illegality.^  So  a  mere  unsuccessful  attempt  of 
the  purchaser  to  prevent  a  person  from  bidding  will  not  avoid  the 

1  Smith    V.    Greenlee,   2    Dev.    126 ;  '•^  Smull  v.  Jones,  1  W.  &  Serg.  128. 

Kearney  v.  Taylor,  15  How.  491.  '^  Phippen  v.  Stickney,  3  Met.  381. 

property,  on  credit,  for  §55,000,  a  sum  for  the  purpose  of  indemnifying  the  sure- 
sufficient  to  secure  his  own  mortgage,  N.'s  ties,  agreed  not  to  bid  against  each  other  ; 
mortgage,  and  B.'s  unsecured  debt.  Held,  that  B.  should  bid,  and  that,  if  the  prop- 
on  the  application  of  the  intermediate  mort-  erty  was  knocked  off  to  him,  the  sureties 
gagees,  that  the  agreement  between  B.  and  of  C.  should  share  in  the  benefit  of  a  re- 
N.  was  illegal,  and  the  sale  was  set  aside,  sale.  A.  intended  to  bid  at  the  sale,  and, 
Hamilton  v.  Hamilton,  liich.  Eq.  355.  A  but  for  the  agreement,  would  have  done 
mortgagee  having  been  enjoined  from  sell-  so.  On  the  day  of  sale,  B.  met  a  judgment 
ing,  under  a  power  of  sale,  a  portion  of  creditor  of  C,  who  attended  "forthepur- 
the  mortgaged  premises;  he  and  the  ap-  pose  of  looking  after  his  case,"  and,  telling 
plicant  for  injunction  made  a  secret  agree-  liim  he  need  not  bother  himself,  offered  to 
ment,  that  the  sale  should  take  place,  the  buy,  and  did  buy,  his  judgment.  At  the 
latter  purchase  at  a  certain  sum,  and  the  sale,  B.  purchased  property  to  a  consider- 
injunction  suit  be  dismissed ;  which  was  able  amount,  and  at  a  considerable  sacri- 
accordingly  done.  Held,  a  party  holding  fice.  Held,  on  a  bill  filed  by  the  creditors 
the  title  subject  to  the  mortgage,  and  of  C,  that  the  conduct  of  B.,  in  silencing 
seeking  to  redeem,  might  avoid  such  sale,  bidders,  was  illegal,  and  the  sale  was  set 
Mapps  V.  Sharpe,  32  111.  13.  aside.     Hamilton  v.  Hamilton,  Rich.  Eq. 

A.  and  B.,  sureties  of  C,  whose  prop-  355. 
erty  was  about  to  be  sold  at  sheriif 's  sale, 


CHAP.    VI.]  SALES    BY    AUCTION,  83 

purchase.^  In  a  very  late  case,  tlic  distinction  is  made,  that  an 
agreement  in  writing  for  one  to  buy  land  at  a  slieriff's  sale  for 
himself  and  others,  each  paying  his  proportion,  is  wot,  j)rimd  facie, 
fraudulent  nor  against  public  policy  ;  otlierwise,  if  made  to  prevent 
fair  competition  or  for  a  fraudulent  purpose.2(a) 

20.  The  general  rule,  above  considered,  applies  as  well  between 
the  parties  themselves  who  enter  into  the  illegal  agreement,  as  in 
reference  to  the  vendor.  Tluis  the  contract  or  job  for  making  a 
road  was  put  up  at  auction,  and  A.  and  B.  agreed  that  one  of  them 
should  bid,  and,  if  the  contract  should  be  struck  off  to  him,  the 
other  should  have  an  equal  share  in  it.  B.  having  become  the 
purchaser,  A.  brought  an  action  against  him  on  the  agreement. 
Held,  the  agreement  was  without  consideration,  and  void.'^  But  a 
party  not  prejudiced  cannot  avoid  an  auction  sale,  on  account  of 
proceedings  on  the  part  of  others  concerned,  which  may  tend  to 
reduce  the  price.  Thus  if  the  trustee,  or  one  of  the  creditors,  in 
a  deed  for  the  benefit  of  creditors,  be  authorized  to  prescribe  the 
day  of  sale,  and  the  length  of  time  for  which  it  shall  be  advertised ; 
the  failure  to  notify  any  of  the  creditors  of  the  time  and  place  does 
not  warrant  the  inference,  that  as  to  one  of  the  creditors  pro- 
vided for,  and  who  attended  the  sale  and  purchased  the  property, 
the  sale  was  fraudulent;  and  the  grantor,  who  assented  to  and 
was  present  at  the  sale,  cannot,  upon  that  ground,  defeat  an  action 
by  the  purchaser  for  the  recovery  of  the  articles  sold.  And  where 
the  sale  of  property,  which  had  been  conveyed  by  deed  of  trust, 
was,  under  the  powers  conferred,  expedited  (with  the  assent  of  the 
grantor),  so  as  to  prevent  the  interference  of  some  of  his  creditors, 
who  were  prosecuting  their  claims  to  judgment ;  the  grantor,  when 
sued,  by  the  purchaser  at  the  trust  sale  for  property  sold,  cannot 
for  that  cause  defeat  a  recovery.* 

21.  If  a  purchaser  at  sheriff's  sale  participate  in  a  fraudulent 
contrivance,  by  which  he  was  enabled  to  become  the  purchaser,  in 

1  Haynes  v.  Crutchfield,  7  Ala.  189.  ^  Wilbur  v.  How,  8  Johns.  444. 

2  Jenkins  v.  Frink,  80  Cal.  58G.  *  Haynes  v.  Crutchfield,  7  Ala.  189. 

(«)  An  auction  sale  will  not  be  avoided  the  corporators,  in  a  corporation  selling 

because  the  purchaser,  who  was  bidding  their  lands  at  public  auction,  that   they 

for  a  third   person,  agreed  with   another  miglit  bid,  and  afterwards  take  the  lots  or 

agent  who  would  liave   otherwise  bid  in  not,  at  their  option,  will  not  invalidate  the 

belialf  of  the  same  person,  that  he  should  sale,  where  the  agreement  was  not  carried 

not  so  bid.     Allen  v.  Stephanes,  18  Tex.  into  effect.     Buckley  v.  Briggs,  30  Mis. 

658.  452. 

An  agreement  or  understanding  among 


84 


LAW  OF  YEND0R3  AND  PURCHASERS.     [CHAP.  VI. 


an  action  of  ejectment  against  him  for  the  property,  it  is  not  neces- 
sary that  the  plaintiff  should  offer  to  refund  the  amount  bid  and 

paid. ^  (a) 

1  SmuU  V.  Jones,  1  W.  &  Serg.  128. 


(rt)  So  an  agreement  of  a  bidder  at  sher- 
iff's sale,  to  pay  the  judgment  of  a  cred- 
itor if  lie  would  refrain  from  bidding,  is 
fraudulent  and  void.  SlingluiF  v.  Eekel, 
24  Penn.  472.  Black,  J.,  says  (p.  473)  : 
"  Can  this  contract  be  enforced  ?  Is  it  not 
against  public  policy,  as  well  as  good  mor- 
als, and  therefore  void  ?  We  all  think  it 
is.  A  debtor,  whose  property  is  taken  in 
execution,  has  a  right  to  have  it  sold  for 
the  highest  price  that  it  will  bring.  If 
two  persons  be  present  who  are  both  will- 
ing to  give  a  certain  sum,  and  one  of  them 
pays  to  the  other  a  portion  of  what  he 
would  otherwise  bid  for  the  land,  the  owner 
is  clieated  exactly  to  that  extent.  The 
debtor  not  being  a  party  to  the  contract, 
nor  assenting  to  it,  we  cannot  perceive 
that  it  makes  any  difference  whether  the 
person  thus  bought  off  be  a  volunteer, 
expecting  to  pay  his  bid  in  cash,  or  a  lien- 
creditor  desiring  to  purchase  in  order  to 
save  himself  Either  way  the  debtor's  in- 
terest may  be  sacrificed.  Besides,  there 
may  be  other  creditors  whose  rights  would 
be  affected  l>y  it.  The  point  has  never 
before  been  directly  ruled  in  this  Court, 
but  we  have  often  declared  the  general 
principle  that  all  judicial  sales  must  be 
open  to  fi-ee  and  fair  competition.  In  more 
than  one  case  we  have  decided  that  any 
device  by  which  the  purchaser  at  sheriff's 
sale  gets  land  at  an  under-price  is  a  fraud, 
which  will  make  his  title  totally  void.  It 
certainly  follows  from  this  that  a  contract 
to  do  that  which  must  necessarily  result 
in  lowering  the  price  and  so  defrauding 
the  debtor  or  his  creditors,  must  be  void 
also.  In  several  of  the  other  States  there 
have  been  cases  so  nearly  like  this  that 
they  are  not  to  be  distinguished.  It  is 
sufficient  to  mention  Jones  v.  Caswell,  2 
Johns.  Cas.  29,  and  Thompson  v.  Davis, 
13  Johns.  Rep.  112.  It  is  not  now  proper 
to  decide  how  far  several  p.ersons,  who 
would  otherwise  bid  against  each  other  at 
sheriff's  sale,  may  associate  themselves 
together,  unite  their  interests,  and  allow 
one  to  bid  for  all.  What  we  do  decree  is, 
that  one  bidder  cannot  legally  buy  off 
another  with  money  or  the  promise  of 
money." 

In  a  recent  case  in  Pennsylvania,  it  is 
held,  that  a  declaration  made  by  a  pur- 
chaser at  sheriff's  sale,  that  he  is  buying 
for  the  benefit  of  the  debtor,  intending  to 
give  him  the  property,  if  true,  is  not  fraud- 
ulent, although  it  reduces  the  price  of  the 


property.  Dick  i\  Cooper,  24  Penn.  217. 
Black,  J.,  says  (p.  221):  "To  avoid  the 
title  of  a  purchaser  at  sheriff's  sale,  it  is 
necessary  to  show  that  he  was  guilty  of 
some  deception.  Where  one  is  buying  for 
himself,  but  falsely  declares  that  his  pur- 
chase shall  enure  to  the  benefit  of  the 
debtor  or  his  family,  and  this  is  done  as  a 
mere  trick  to  prevent  competition,  and  thus 
get  the  property  at  an  under-price,  he  ac- 
quires no  title.  But  to  say  that  he  intends 
to  give  it  to  the  debtor  or  let  him  redeem 
it,  when  such  is  really  his  intention,  is  no 
fraud.  It  is  generous,  — perhaps  it  is  im- 
prudent ;  but  imprudent  generosity  is 
not  a  crime.  One  who  chooses  to  run  the 
risk  may  lawfully  buy  in  property  for  a 
debtor  and  leave  it  with  him  on  any  sort 
of  contract  he  chooses  to  make.  If  it  be 
lawful  to  do  a  thing,  it  cannot  be  wrong 
for  a  man  to  say  openly  and  candidly  that 
he  intends  to  do  it.  We  have  decided 
lately,  in  several  cases  not  yet  reported, 
that  to  make  the  purchase  void  it  must  be 
l^roved  that  the  property  was  obtained  at 
an  undervalue,  and  by  means  of  a  false 
representation."  But  in  a  late  case  in 
Illinois,  at  a  commissioner's  sale  under  a 
decree  for  partition,  the  purchaser  publicly 
asserted  a  claim  to  the  property,  and 
threatened  to  litigate  it,  and  thereby  pre- 
vented parties  from  bidding  as  much  as 
they  otherwise  would.  Held,  a  fraud,  for 
which  the  sale  should  be  set  aside.  Scates, 
J.,  says  :  "  If  he  desired  to  become  a  bid- 
der, it  was  essential  to  fairness  towards  the 
petitioner  that  he  should  conceal  or  forbear 
to  assert  his  adverse  claim,  whatever  con- 
sequence might  result  therefrom  to  his 
interest.  It  is  not  competent  for  him  to 
assert  his  claim  to  the  premises  by  a  public 
announcement  at  the  Vnddings,  with  a 
threat  to  litigate  it  with  any  purchaser, 
and  then  enter  into  competition  in  the 
biddings,  and  purchase  at  an  undervalue 
occasioned  by  the  depreciation  his  own 
conduct  had  produced.  If  it  were  essential 
for  the  protection  of  his  claim  to  give  no- 
tice and  make  it  known  at  the  sale,  he 
thereby  disqualified  himself  to  bid  or  be- 
come a  purchaser  of  this  adverse  title  at 
such  sale.  He  shall  not  be  allowed  to 
depreciate  or  destroy  the  value  of  the  land 
by  denying  the  title,  then  buy  it  at  a  de- 
preciation thus  produced,  and  claim  to  be 
a  fair  purchaser."  Cofley  v.  Coffey,  16 
111.  141. 


CHAP.    VI.]  SALES   BY    AUCTION.  85 

22.  It  is  not  per  »e  fraudulent  for  the  owner  to  act  as  auctioneer.^ 
But  an  auctioneer,  who  is  himself  the  vendor  and  party  in  interest, 
is  not  authorized  to  sign  a  memorandum  to  take  the  sale  out  of  the 
Statute  of  Frauds.^  And  it  has  boon  sugg-ostcd,  that  an  auction 
sale  to  an  association,  of  which  the  auctioneer  is  a  m(3mbcr,  is 
invalid.'^  And  it  has  been  exjnessly  decided,  that  an  auctioneer 
cannot  purcliase  property  himself.  So,  if  he  has  also  been  in  other 
respects  connected  with  the  vendor,  as  by  valuing  the  property ; 
and  purchases  the  estate  the  next  day  by  private  contract,  it  not 
being  sold  at  auction,  for  want  of  a  bid  ;  and  fails  to  give  a  satis- 
factory account  of  the  proceedings  in  his  answer  to  a  bill  filed 
against  him  ;  the  purchase  will  be  set  aside.  In  such  case,  the 
duties  of  an  agent  do  not  cease  with  the  auction.'^  But  a  purchase 
by  an  auctioneer  for  himself  is  not  void,  but  voidable  by  the  prin- 
cipal.    Third  persons  cannot  question  the  sale.^ 

23.  As  in  the  case  of  other  agents  (a),  an  auctioneer's  authority 
to  sell  land  need  not  appear  in  •  writing.*^  A  verbal  authority 
authorizes  an  agent  to  act  as  auctioneer  and  to  sell  lands,  though 
not  to  make  a  deed  of  them.'(i) 

24.  An  auctioneer  cannot  delegate  his  authority.^  But  he  may 
employ  another  person  to  use  the  hammer  and  make  the  outcry, 
under  his  immediate  supervision  and  direction ;  and,  though  he  is 
occasionally  absent  during  the  sale,  the  agent  will  not  incur  the 
penalty  of  selling  without  license.^  Whether  the  transaction  was 
a  sale  by  the  auctioneer,  made  through  the  defendant,  or  by  the 
defendant,  under  pretence  of  a  permission  from  the  auctioneer,  in 
order  to  evade  the  statute,  is  a  question  for  the  jury.^o 

25.  Questions  sometimes  arise,  as  to  the  authority  of  the  auc- 
tioneer to  receive  payment  for  the  property  sold. 

1  Flint  V.  Woodin,  13  Eng.  Law  &  Eq.  e  Doty  v.  Wilder,  15  111.  407. 

278.  7  Yourt  v.  Hopkins,  24  111.  826. 

'i  Bent  V.  Cobb,  9  Gray,  397.  8  Stone  r.  The  State,  12  Mis.  400. 

3  Kearney  v.  Taylor,  15  How.  494.  •'  Com.  v.  Harnden,  19  I'ick.  482. 

4  Oliver  v.  Court,  8  Price,  127.  W  Ibid. 

5  Veazie  i'.  Williams,  3  Story,  611. 

(n)  See  chap.  5.  closed   princijial,    if  they   do   so  without 

[h)  Where  auctioneers,  who  were  not  authority,  they  are  i)rimarily  responsible 

authorized  to  sell  a  house  and  lot  for  less  as  contracting  parties,  and  are   liable   to 

than  $2,800,  struck  them  off  for  .$2,250  ;  refund  to  the  purcliaser  the  amount  of  iiis 

held,  the  contract  was  not  binding  upon  deposit  and  auctioneer's  fees  with  interest, 

the  owner,  but  the  auctioneers  were  per-  And  if  they  knew  tliey  were  not  autlior- 

sonally  bound  byit.   Bush  v.  Cole,  28N.Y.  ized  to  sell  for  less  than  .'^2,s(i(),  winn  tliev 

(1  Tiffa.)  261.  sold  to  the  ])hnntifrat  si!,-j.',(i,  he  may  also 

Where  auctioneers  sell  real  estate,  and  recover  wiuitthe  premises  were  worth  over 

sign  the  contract  as  agents  of  an  undis-  and  above  tiie  price  he  was  to  pay.     Ibid. 


86  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VI. 

26.  An  auctioneer's  authority  to  receive  a  portion  of  the  pur- 
chase-money, which,  by  the  terms  of  sale,  is  to  be  paid  within  a 
certain  time,  does  not,  ijjso  facto,  expire  immediately  at  the  end  of 
that  time.^ 

27.  Under  some  circumstances,  payment  to  the  auctioneer  will 
be  invalid.  Thus,  the  plaintiff  having  employed  an  auctioneer  to 
sell  timber  growing,  the  following,  amongst  other  conditions,  were 
read  at  the  sale,  in  presence  of  the  defendant :  "  That  each  pur- 
chaser should  pay  down  a  deposit  of  <£10  per  cent  in  part  of  the 
purchase-money,  and  pay  the  remainder  on  or  before  the  ITtli  of 
August ;  but  in  case  any  purchaser  should  prefer  to  pay  the  whole 
amount  of  his  purchase-money  at  an  earlier  period,  discount  after  the 
rate  of  .£5  per  cent  will  be  allowed."  Also,  "  that  each  purchaser 
shall  enter  into  a  proper  agreement  and  bond,  if  required,  with 
such  one,  two,  or  more  sureties  as  shall  be  approved  by  the  vendor, 
or  his  agent,  for  the  performance  of  his  agreement,  pursuant  to  the 
above  conditions."  The  defendant  purchased  one  lot,  and  paid  the 
deposit.  Some  days  after  the  sale,  which  was  on  the  14th  of  Feb- 
ruary, the  defendant,  at  the  auctioneer's  request,  drew  a  bill  of 
exchange  for  the  residue  of  the  purchase-money,  dated  on  the  day 
of  the  sale,  and  payable,  in  six  months,  to  his  own  order,  and 
indorsed  it  to  the  auctioneer,  who  indorsed  it  to  a  creditor  of  his 
own.  When  the  bill  became  due,  it  was  paid,  but  never  trans- 
ferred to  the  plaintiff.  Held,  the  delivery  and  payment  of  the  bill 
was  not  a  valid  payment  of  the  purchase-money,  the  auctioneer 
having  no  authority  to  receive  payment,  or,  if  he  had  such  author- 
ity, only  in  cash.^ 

28.  The  auctioneer  is  in  general  responsible  for  the  purcliase- 
money  paid  him,  only  to  his  employer.  Thus  the  defendant,  an 
auctioneer,  was  employed  by  a  person  in  embarrassed  circum- 
stances, known  to  the  defendant,  to  sell  his  property  ;  sold  it,  and 
paid  the  proceeds  to  his  order.  The  owner  was  soon  afterwards 
declared  insolvent.  Held,  the  defendant  was  not  liable  to  tlie 
assignees.^ 

29.  It  has  been  questioned,  whether  sales  by  auction,  except 
those  made  under  a  decree,  are  within  the  Statute  of  Frauds.^  But 
the  weight  of  authority  is  that  they  are.^     Thus  where  a  contract 

1  Pinckney  ?'.  Hasadorn,  1  Duer,  89.  *  Simon  v.  Motives,  1  Bl.  599 ;  Brook 

2  Sykes  v.  Giles,  5  M.  &  VV.  645.  v.  Jones,  8  Tex.  78. 

3  White  V.  Barllett,  9  Bing.  378.  5  Blagden   v.  Bradbcar,  12  Ves.  466 ; 

Higginson  v.  Clowes,  15  Ves.  516. 


CHAP.    VI.]  SALES   BY   AUCTION.  87 

for  the  sale  of  land  has  been  abandoned,  and  an  action  brought  for 
the  deposit,  and  the  plaintiff  declares  on  the  special  circumstances, 
and  states  the  contract ;  he  must  prove  it  to  have  been  a  valid  one, 
by  a  note  in  writing,  even  though  the  sale  was  by  auction.^ (a) 

30.  But,  if  auction  sales  are  within  the  statute,  the  weight  of 
authority  also  is,  that  an  auctioneer  is  hy  implication  an  agent,  duly 
authorized  to  sign  a  contract  for  the  purchase  of  real  estate,  on 
behalf  of  the  highest  bidder.  Writing  the  name  of  the  highest 
bidder  in  his  book  or  memorandum  of  sale  is  a  sufficient  signa- 
ture, more  especially  if  done  immediately  on  receiving  the  bid  and 
knocking  down  the  hammer.  And  if  the  highest  bidder  is 
agent  for  another,  and  if  the  terms  and  conditions  are  stated,  the 
writing  of  the  bidder's  name  will  bind  the  principal  ;  at  least  if  the 
principal  is  present,  and  consulting  with  the  agent  during  tlie  sale, 
and  makes  no  objection  before  the  entry  made  in  the  book.^  The 
auctioneer's  authority  is  given  by  the  buyer's  bidding  aloud,  or  giv- 
ing in  his  name.^(5)  And  specific  performance  will  be  decreed 
against  the  purchaser,  upon  the  note  made  by  the  auctioneer.'* 

31.  On  the  other  hand,  it  has  been  held,  that  the  auctioneer  is 
not  an  agent  for  both  parties,  and  therefore  such  entry  in  his  book 
is  not  a  sufficient  note  in  writing.^(c)     More  especially,  that  fact 

1  Walker  v.  Constable,  2  Esp.  Ca.  659.  3  Emmerson  v.  Heelis,  2  Taunt.  38 ; 

2  White    V.   Proctor,   4    Taunt.    209 ;  Simon  v.  Motives,  1  Black.  599. 
M'Comb  V.  Wriglvt.  4  Johns.  Ch.  659 ;         *  Kemeys  v.  Proctor,  3  Ves.  &  B.  57  ; 
Pinckney  v.  Hagadorn,  1  Duer,  89 ;  Doty  1  Jac.  &  Walk.  350. 

V.  Wilder,  15  111.  407  ;  Hunt  v.  Gregg,  8  5  Stansfield  v.  Johnson,  1  Esp.  Ca.  101 ; 

Blackf.  105  ;  Meadows  v.  Meadows,  3  M'C.  Buckniaster  v.  Harrop,  13  Ves.  456.     See 

458.    See  Bartlett  v.  Purnell,  4  Ad.  &  Ell.  Simon  v.  Motives,  1  Black.  599. 
792 ;  Howe  v.  Dewing,  2  Gray,  476. 

(a)  A  sheriff's  sale  is  within  the  stat-  press  a  decided  opinion  upon  either  side 

ute,  but  his  return,  stating  fully  the  terms  of  the  question.     The  plaintiff,  an   auc- 

of  the  contract,  if  made  immediately  upon  tioneer,  brings   special  assumpsit  against 

the  sale,  is  a  sufficient  signing.     If  other-  the  highest   bidder,  at  a  sale  of  land,  to 

wise,  not.     Jackson   v.  Catlin,   2  Johns,  recover   money  paid  by  the  plaintiff  for 

248  ;  Hunt  v.  Gregg,  8  Blackf.  105.  the  auction  duty  ;  which,  by  the  conditions, 

(6)  In   this  case,  Lord   Mansfield   re-  the  purchaser  was  to  pay.  It  appeared  that 

marked,  that  the  solemnity  of  an  auction  the  sale  was  invalid,  in  consequence  of  the 

sale  precludes  all  perjury  as  to  the  fact  plaintiff's  having  omitted  to  set  down  the 

of  the  sale;   and  expressed  it  as  the  in-  name   of   the   defendant.     Held,   neither 

clination  of  his  opinion,  that  auctions,  in  this  action,  nor  an  action  for  inoni-y  paid, 

general,  are    not  within    the    Statute    of  would  lie.    Jones  v.  Nanney,  13  Price,  70. 

Frauds.      Wilmot,    J.,   was    inclined    to  See  Deven  v.  Davenell,  3  Camji.  451. 

think,    that    sales    by    auction,    openly  (c)  By  the  Pevised  Statutes  of  New 

transacted    before    five    hundred    people,  York,  a  contract  of  sale  is  void,  and  not 

were   not   within   the    statute.      But,   in  binding  upon  the  vendor  or  vendee,  un- 

Hinde    v.  Wliitehouse    (7  E.  508),  Lord  less  subscribed  by  the  vendor  or  his  agent 

Ellenborough    remarked,   that,    with    all  thereto  duly  authorized ;    and  the  entry 

due  deference,  it  was  no  sufficient  reason  by  the  auctioneer  on  liis  books  is  not  a 

to  dispense  with  the  statute,  nrerely  that  signing  within  the  statute.     Miller  v.  Pel- 

the  quantum  of  parol  evidence  diminishes  letier,  4  Edw.  Ch.  102. 
the  danger  of  perjury ;  but  failed  to  ex- 


88  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VI. 

not  being  proved  to  be  contemporary,  and  the  auctioneer  being  also 
vendor.^  So  a  plea,  that  "  A.,  by  his  writing,  sold  the  after-math 
of  land  to  B.,"  is  not  proved  by  evidence,  that,  at  an  auction  held 
for  the  purpose  of  selling  it,  B.  was  the  purchaser,  and  gave  his 
note  for  the  price,  and  that  his  name  was  written  by  A.'s  agent  in 
the  printed  catalogue,  as  the  buyer.^  So  the  rule  above  stated 
extends  only  to  persons  exercising  the  public  business  of  an  auc- 
tioneer, not  to  mere  private  agents  of  the  vendor .^ 

32,  The  mere  signing  of  the  auctioneer  is  not  sufficient,  unless 
the  terms  and  conditions  of  the  sale  appear  in  the  paper  signed. 
His  memorandum,  or  some  writing  connected  therewith,  must  refer 
to  the  conditions  of  sale,  and  state  the  material  terms  of  the 
agreement.^  Thus  an  auctioneer,  after  reading  or  exhibiting  writ- 
ten conditions,  made  this  memorandum :  "  Sale,  on  account  of 
Messrs.  Morton  and  Dean,  assignees  of  the  Taunton  Iron  Company, 
of  the  real  estate,  nail-works,  water-privilege,  buildings,  and  ma- 
chineiy,  agreeable  to  the  plans  and  schedule  herewith.  Sale  to 
Silas  Dean  for  $30,300.  April  5th,  1843."  Held,  this  memoran- 
dum was  insufficient,  not  containing  nor  referring  to  the  conditions 
of  sale.^  So  an  auctioneer's  receipt  for  the  deposit,  not  containing 
expressly  or  by  reference  the  terms,  viz.,  the  price,  cannot  bind 
the  vendor  as  an  agreement.^  So  where,  on  the  sale  of  an  estate 
by  auction,  the  name  of  the  owner  docs  not  appear  in  the  particu- 
lars or  conditions  of  sale,  or  in  the  agreement  signed  by  the  pur- 
chaser, and  the  agreement  is  not  signed  either  by  the  vendor  or  the 
auctioneer ;  it  seems  the  vendor  cannot  maintain  an  action  on  the 
contract.'' 

33.  The  agent,  contemplated  by  the  17th  section  of  the  statute, 
who  is  to  bind  a  defendant  by  his  signature,  must  be  a  third  person, 
and  not  the  other  contracting  party.  Therefore  where  an  auc- 
tioneer wrote  the  defendant's  name,  by  his  authority,  opposite  to 
the  lot  purchased  ;  held,  in  an  action  brought  in  the  name  of  the 
auctioneer,  the  entry  was  not  sufficient.^  So  where  an  adminis- 
trator, licensed  to  sell  the  real  estate,  acted  as  auctioneer ;  held,  a 
memorandum  by  him  of  the  sale  at  the  time  was  not  binding  on 
the  purchaser,  the  auctioneer  not  being  in  law  his  agent? 

1  Buckmaster  v.  Harrop,  13  Ves.  456.  ^  Blagden  v.  Bradbear,  12  Ves.  466. 

2  Symonds  v.  Ball,  8  Term  Kep.  151.  "  Wheeler  v.  Collier,  1  M.  &  M.  123. 

3  Anderson  v.  Chick,  1  Bai.  Eq.  118.  ^  Farebrother  v.  Simmons,  5  Barn.  & 

4  Morton  v.  Dean,  13  Met.  385 ;  Doty  Aid.  333. 

V.  Wilder,  15  Ul.  407.  9  Smith  r.  Arnold,  5  Mas.  414. 

5  Ibid. 


CHAP.  VL]  sales  by  AUCTION.  89 

34.  It  has  been  held,  that  the  highest  bidder  is  l)ound  by  the 
entry  in  the  sale-book  by  the  auctioneer's  clerk,  made  in  his  pres- 
ence, upon  his  name  being  called  out  as  the  purchaser,  even  in  an 
action  brought  by  the  auctioneer.^  If  an  auctioneer  has  a  clerk 
to  make  entries  in  the  sale-book,  authority  of  the  purchaser  to 
enter  his  name  in  such  book  must  necessarily  be  implied,  where, 
within  view  of  all  the  bidders,  he  is  employed  to  thus  enter  the 
names  ;  and  such  authority  may  be  given  before  or  at  the  time  of 
entry,  and  a  subsequent  assent  of  the  purchaser  will  confirm  an 
entry  made  without  authority.^  So  an  auctioneer's  clerk,  under  a 
general  authority  to  act  in  his  master's  absence,  may  sign  a  con- 
tract for  sale,  where  the  vendor  knew  that  he  was  so  to  act.  So 
where  such  clerk  signs  the  contract  as  a  witness  for  his  master, 
who  is  authorized  to  sell,  he  may  be  considered  as  a  contracting 
party  according  to  the  statute.^ 

35.  But,  in  the  following  case,  lands  of  the  defendant  were  put 
up  by  him  at  auction,  and  one  condition  of  the  sale  was,  that  the 
purchaser  should  pay  a  deposit  and  half  the  auction  duty.  The 
plaintiff  purchased  and  paid  as  above,  and  signed  a  written  mem- 
orandum of  the  contract,  which  A.  B.,  the  auctioneer's  clerk,  also 
signed,  as  follows  :  "  Witness,  A.  B."  A.  B.  received  the  above 
sums,  for  C,  the  auctioneer,  and  signed  the  receipt  (being  author- 
ized by  C.  to  do  so),  as  follows  :  "  For  Mr.  C,  A.  B."  Money 
was  afterwards  paid  over  by  the  auctioneer  on  the  purchase,  to  D., 
the  defendant's  attorney,  as  his  agent.  The  defendant  not  being 
able  to  make  out  his  title,  D.,  as  his  agent,  wrote  a  letter  to  tlie 
plaintiff's  attorney,  naming  the  plaintiff  and  defendant,  saying  that 
he  could  not  make  out  the  title  to  "  this  property  as  freehold," 
advising  the  plaintiff  to  relinquish  his  purchase,  and  referring  to 
the  "  charges  "  to  be  made  by  the  plaintiff's  attorney.  Held,  that 
A.  B.  did  not  sign  the  memorandum  as  agent  to  the  defendant ; 
that  neither  his  agency  nor  the  contract  was  recognized  l)y  the 
receipt  of  the  money  or  D.'s  letter;  that  there  was,  consequently, 
no  proof  of  a  contract  to  make  a  title,  on  which  the  defendant 
could  be  charged  under  section  4  of  the  Statute  of  Fraiuls  ;  and 
therefore,  that,  although  the  plaintiff  might  recover  the  deposit  and 

1  Bird  V.  Boulter,  1  Nev.  &  Man.  ?,\"  ;  2  Cathcart  v.    Keirnaglian,   5    Strobh. 

4  Barn.  &  Adol.  447  ;  Doty  v.  Wilder,  15  129. 
111.  407.     But  See  Meadows  v.  Meadows,         ^  1  Smith's  Rep.  233. 
3  M'C.  458. 


90  LAW   OF    VENDORS    AND    PURCHASERS.  [CHAP.    VI. 

moiety  of  auction  duty  as  money  had  and  received,  he  could  not 
recover  interest  thereon,  nor  his  expenses  of  investigating  the 
title.i 

35  a.  The  object  of  special  conditions  of  an  auction  sale  is  to  pro- 
tect the  vendor  from  inquiries  which  he  himself  may  be  unable  to 
satisfy,  and  against  objections  which  he  cannot  explain  away.  But 
a  condition,  in  the  sale  of  an  estate  made  under  a  decree,  that  no 
requisition  or  objection  shall  be  made  in  respect  to  a  specified 
under-lease,  or  any  other  one  prior  to  a  certain  time,  does  not  pre- 
clude requisitions  concerning  a  prior  under-lease,  not  specified, 
and  known  to  the  vendor.^ 

36.  Questions  have  arisen  as  to  the  introduction  of  parol  evi- 
dence in  relation  to  auction  sales  of  land,  &c.  Upon  this  subject, 
it  is  held,  that  the  verbal  declarations  of  an  aiictioneer,  at  the  time 
of  sale,  are  not  admissible,  to  contradict  the  printed  conditions  or 
particulars.'^  So  though  the  question  arises  on  a  sub-sale  by  the 
purchaser.*  So  though  a  paper,  as  the  particular  upon  a  sale  by 
auction,  may  by  reference  be  engrafted  into  a  contract  within  the 
Statute  of  Frauds,  that  will  not  authorize  the  introduction  of  parol 
evidence  to  show  what  part  was  read.^  So  parol  evidence  is  not 
competent,  in  aid  of  a  specific  performance,  to  explain  by  declara- 
tions of  the  auctioneer  an  ambiguity  on  the  face  of  the  particular, 
growing  out  of  a  general  clause  for  a  separate  valuation  of  the  tim- 
ber, and  also  special  provisions  as  to  the  timber  upon  certain  lots  ; 
the  agreement  signed  on  the  back  of  the  particular  binding  the 
purchaser,  the  defendant,  "  to  a  strict  fulfilment  of  the  article,  and 
to  abide  by  the  conditions  and  regulations  made  at  the  sale."  ^  So 
in  an  action  against  a  purchaser  at  auction,  for  not  completing  the 
sale,  the  printed  conditions  cannot  be  contradicted  by  the  verbal 
declarations  of  the  auctioneer  at  the  time,  in  order  to  disprove  the 
charge  of  misrepresentation.  Thus  where  the  conditions  were, 
that  the  property  was  "  free  from  all  incumbrances,"  when  in  fact 
there  was  a  charge  upon  it  of  £11  per  annum,  which  the  auc- 
tioneer declared,  but  not  to  the  purchaser  individually ;  held,  no 
action  would  lie  against  the  latter  for  not  completing  his  purchase." 
So  where  printed  conditions  of  sale  of  timber,  growing  in  a  certain 

1  Gosbell  V.  Archer,  2  Ad.  &  Ell.  500.  4  ghelton  v.  Livins,  2  Cromp.  &  Jerv. 

'■^  Edwards    v.    Hinckwar,   Law    Rep.     411. 
(Eng.),  Eq.  Jan.  1866,  p.  67.  ^  Higginson  v.  Clowes,  15  Ves.  515. 

3  Gunnis  v.  Erhart,  1  H.  BI.  289.  6  ibid. 

'  Gunnis  v.  Erhart,  1  H.  Bl.  289. 


CHAP.    VI.] 


SALES    BY    AUCTION. 


91 


close,  do  not  state  the  quantity,  parol  evidence  is  not  admissilde 
that  the  auctioneer  warranted  a  certain  quantit}'.^ 

37.  But  parol  evidence  of  declarations  by  the  auctioneer  at  the 
sale,  warranting  the  quantity,  was  received  in  opposition  to  a  sj)e- 
cific  performance,  on  the  ground  of  fraud  ;  not  to  enforce  the  per- 
formance.^(a)  So,  though  parol  evidence  of  the  declarations  of  an 
auctioneer,  contrary  to  the  written  terms  of  sale,  is  not  admissible, 
such  evidence,  as  to  the  property  intended  to  be  sold  by  him,  is 
proper.^  So  a  purchaser  at  auction  is  bound  by  verbal  declara- 
tions of  the  vendor,  made  publicly,  at  the  sale,  and  l)efore  the 
biddings ;  which  declarations  are  not  variant  from  the  terms 
advertised,  but  are  additional  and  explanatory  thereto.  And  he 
shall  be  compelled  to  complete  his  purchase  according  to  the  terms 
so  explained.* 

38.  It  has  been  questioned,  whether  the  rule  against  admitting 
verbal  declarations  of  an  auctioneer  at  the  time  of  sale,  in  con- 
tradiction to  the  printed  particulars,  has  the  effect  to  exclude 
evidence  of  personal  information  as  to  a  mistake  in  the  particular.^ 
And  the  printed  conditions  of  sale  posted  up  under  the  auctioneer's 

1  Powell  V.  Edmunds,  12  East,  6.  Cir.  C.  199.     See  Wiiinw right  v.  Read,  1 

'^  Winch    V.    Winchester,    1    Ves.    &  Desaus.  573. 
Beam.  375.  ■*  Cannon  v.  Mitchell,  2  Desaus.  320. 

3  Lessee  of  Wright  v.  Deklyne,  Peters'         ^  Ogilvie  v.  Foljarabe,  3  Meri.  53. 


(a)  Assumpsit,  upon  a  promise  by  tlie 
defendant  to  pay  one  A.  the  amount  of  a 
debt  due  from  the  plaintiff  to  A.,  secured 
by  a  mortgage  of  the  plaintifTs  real  estate, 
in  consideration  of  a  deed  of  release  given 
by  the  plaintitt'  to  the  defendant  of  such 
estate.  It  appeared,  that  the  plaintiff  had 
an  auction  sale  of  his  property,  including 
the  estate  in  question.  When  this  was 
offered  for  sale,  the  auctioneer,  after  de- 
scribing the  property,  stated  the  precise 
amount  of  the  mortgage,  and  called  for 
bids  by  asking  "  Who  will  give  more  ^  " 
or,  "  How  much  more  will  you  give  1  " 
and  it  was  struck  off  to  B.  for  $50.  The 
defendant,  being  present  at  the  sale,  after- 
wards agreed  with  B.  to  buy  his  bid  for 
§25  advance.  The  plaintiff  thereupon  gave 
a  quitclaim  deed  to  the  defendant,  with  a 
covenant  against  the  claims  of  all  persons 
claiming  by,  from,  or  under  him,  except 
the  mortgage,  and  the  defendant  paid  to 
B.  the  sum  agreed.  Held,  parol  evidence 
was  admissible,  of  an  understanding  b3'' 
the  ])laintiff  and  B.  at  the  sale,  that  the 
purchaser  was  to  pay  the  mortgage  debt, 
notwithstanding  the  memorandum  of  the 
auctioneer's   clerk   and   the  deed  of  the 


plaintiff;  and  that  the  agreement  was  not 
within  the  Statute  of  i'rauds.  Fiske  ?;. 
M'Gregory,  Law  Rep.  Mar.  1857,  p.  633 
(N.H.). 

Assumpsit  for  the  price  of  land  sold  at 
auction.  The  bid  was  $600,  §200  to  be 
paid  down,  which  was  done ;  the  balance 
to  be  secured  on  time,  and  the  deed  exe- 
cuted upon  production  of  the  requisite 
securities.  Tlie  plaintiff  made  a  proper 
deed,  and  tendered  it  on  condition  of  re- 
ceiving the  securities.  The  defendant  did 
not  give  them,  but  obtained  the  deed  and 
placed  it  on  record  without  the  consent  of 
the  plaintiff,  and  took  possession  of  the 
land.  Held,  the  defendant  having  treated 
the  deed  as  delivered,  the  plaiiitilfnught 
elect  to  do  so,  and  thus  vest  the  title  in  the 
defendant,  notwithstanding  the  Statute  of 
Frauds.  Also,  that  a  special  action  could 
be  maintained  against  the  defendant,  for 
failing  to  furnish  the  securities  liefore  tlie 
time  fixed  for  payment,  and  ilamages  re- 
covered to  the  amount  of  the  agreeil  price. 
Also,  that  a  general  action  for  the  price 
might  be  brought,  after  the  time  of  pay- 
ment had  passed.  Ascutney,  &c.  v.  Orms- 
by,  Law  Rep.  Dec.  1,  1856,  p.  469  (N.H.). 


92  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

box,  lie  declaring  that  the  conditions  are  as  usual,  are  sufficient 
notice  to  purchasers  of  such  conditions.^  So  the  auctioneer's  adver- 
tisement may  be  explained  by  his  declarations  at  the  time  of  sale.^ 

39.  It  will  be  seen  hereafter,  that  part-performance  of  a  verbal 
contract  takes  it  out  of  the  operation  of  the  Statute  of  Frauds,  (^a) 
But  it  has  been  held,  that  payment  of  the  auction  duty  is  not  such 
a  part-performance  as  will  have  this  effect,^ 

40.  In  connection  with  the  sulrject  of  sales  hy  auction,  may 
properly  be  considered  the  rights  and  liabilities  of  vendor  and 
purchaser,  with  reference  to  a  deposit.  A  deposit  is  the  payment 
of  a  part  —  usually  a  small  part  —  of  the  price  by  the  purchaser; 
made  chiefly  for  the  purpose  of  binding  the  bargain.  Occurring 
for  the  most  part  in  sales  by  auction,  it  naturally  forms  a  part  of 
that  particular  title  in  the  law  of  vendors  and  purchasers. 

41.  An  auctioneer  receiving  a  deposit  is  said  to  be  a  stakeholder, 
not  the  ardent  of  the  parties.  He  is  held  to  be  liable  at  all  events, 
till  the  contract  is  completed.  His  knowledge  of  a  defective  title 
is  equivalent  to  an  express  notice  not  to  pay  over.  The  deposit 
is  a  conditional  payment,  not  to  be  parted  with  till  the  conditions 
are  fulfilled. ^(6)      Hence,  if  the  vendor  of  an  estate  by  auction 

1  Mesnard  v.   Aldridge,  3  Esp.  Rep.         ^  Buckmaster  v.  Harrop,  7  Ves.  341. 
271.  *  Edwards  v.  Hodding,  1  IMarsh.  377  ; 

2  Rankin  v.  Matthews,  7  Ired.  286.  Burrough  v.  Skinner,  5  Burr.  26o'J. 

(a)  See  chap.  8.  If  an  auctioneer  deviate  from  the  strict 

(b)  Sale  of  houses  at  auction,  accord-  terms  of  the  conditions,  lie  must  person- 
ing  to  certain  particulars  and  conditions,  ally  sutler  the  consequences ;  being  liable 
one  of  which  was,  that  an  abstract  of  title  for  the  duties,  and  not  entitled  to  main- 
be  delivered  within  ten  days,  and  another,  tain  any  action  against  the  vendee.  If 
that  a  deposit  be  paid  the  auctioneer.  A  the  auctioneer  has  fuliilled  his  duty,  he 
purchaser  of  two  houses  paid  the  deposits,  may  maintain  assumpsit,  as  on  an  implied 
signed  an  agreement  as  purchaser,  and  promise,  against  the  vendor  ;  who  also 
took  a  receipt  from  the  auctioneer,  as  for  lias  a  claim  upon  the  purchaser,  on  the 
payment  of  a  deposit  upon  the  auction  express  agreement  arising  from  the  con- 
sale  of  the  premises  named  in  the  particu-  ditions  of  sale.  Jones  v.  Naniie^',  13 
lars,  &c.  The  abstract  not  being  deliv-  Price,  76.  As  to  the  general  rights  and 
ered,  the  vendee  brings  an  action  against  liabilities  of  an  auctioneer,  see  Rex  v. 
the  auctioneer  for  his  deposit,  and  offers  Cliristie,  2  Anst.  586 ;  Hardacre  v.  Stew- 
in  evidence  the  receipt  and  conditions  of  art,  5  Esp.  103 ;  Nelson  v.  Aldridge,  2 
sale,  but  not  the  agreement  signed  by  Stark.  435;  Brown  v.  Stadton,  2  Chit, 
himself.     Held,  the  action  was  not  sus-  353. 

tained.     Curtis  v.  Created,  3  Nev.  &  M.  The  solicitor  of  a  vendor,  professing 

449 ;  1  Ad.  &  Ell.  167.  to  receive  a  deposit  as  his  agent,  is  not. 

The  title  of  an  estate  sold  at  auction  like  an  auctioneer,  who  acts  as  agent  for 

being  objected  to,  the  auctioneer  refused  both  parties,  a  stakeholder,  but  is  bound 

to  return  the  deposit,  and  was  compelled  to  pay  over  the  money  on  demand,  and 

to  pay  the  costs  of  a  suit  brought  against  liable  for  interest.     Edgell  v.  Day,  Law 

him.      Held,   he   could   not  recover   the  Rep.  (Eng.),  Eeb.  1866,  p.  79  (overruling 

amount  from  the  vendor,  in  an  action  for  a   contrary   opinion,   expressed    in    Sug- 

money  paid,  but  must  declare  specially,  den   on   Vendors,  14th  ed.  p.  50).     See 

Spurrier    v.    Elderton,    5    Esp.    1.     See  §  42. 
Mitchell  u.  Ilayne,  2  Sim.  &  St.  63. 


CHAP.  VI.]  SALES  BY  AUCTION.  93 

does  not  show  a  clear  title  by  the  day  specified,  tlie  purchaser  uuiy 
recover  back  his  deposit  and  rescind  the  contract.^  So  wliere  an 
auction  purchaser  rescinds  the  bargain,  in  consecpience  of  an 
objection  to  the  title  and  concealment  of  material  facts,  he  may 
recover  a  deposit  from  the  auctioneer,  no  proof  being  offered  that 
it  has  been  paid  over  to  the  vendor.  The  auctioneer  would  have 
no  right  to  pay  it  over,  till  completion  of  the  sale.^  So  an  auc- 
tioneer received  a  deposit  from  the  purchaser,  in  presence  of  the 
vendor,  signed  an  agreement  acknowledging  the  sale,  and  engaged 
to  complete  it ;  but,  by  reason  of  a  defect  in  the  title,  the  sale  was 
not  completed.  Held,  the  purchaser  might  recover  the  deposit 
from  the  auctioneer,  though  paid  over  to  tlie  vendor  before  dis- 
covery of  the  defective  title,  and  though  the  purchaser  had  given 
him  no  notice  against  paying  it  over.^ 

42.  The  net  amount  of  a  deposit  only,  without  interest,  can  be 
recovered.^  Thus  where  an  auction  purchaser  paid  to  the  auc- 
tioneer a  deposit  as  part  of  the  price,  until  the  title  should  be 
made  out ;  held,  the  auctioneer  was  not  liable  for  interest,  though 
four  years  had  elapsed  since  the  sale,  no  demand  of  payment 
having  been  made  upon  him.^  So  an  auctioneer,  as  agent  for  the 
vendor,  agreed  to  sell  according  to  printed  conditions,  by  which 
the  purchaser  was  to  pay  down  a  deposit  and  the  duty,  and  the 
balance  of  the  pi"ice  at  a  certain  day,  upon"  receiving  a  good  title, 
and  the  vendor  was  to  prepare  and  deliver  to  the  vendee  an 
abstract.  The  title  being  defective,  and  the  sale  consequently 
failing ;  held,  the  auctioneer  was  a  stakeholder,  and  not  liable  for 
interest,  unless  the  money  had. been  demanded,  or  notice  given 
him  that  the  bargain  was  rescinded.^ 

43.  All  matters  of  difference  between  two  parties  were  referred 
by  a  Judge's  order  to  arbitration,  and  an  agreement  of  reference 
entered  into,  in  which  one  of  them  was  described  as  the  adminis- 
trator of  a  deceased  person,  late  owner  of  the  leasehold  premises, 
the  right  to  wliich  was  in  dispute.  It  was  awarded,  that  the 
premises  be  sold  by  an  auctioneer,  whose  appointment  was  assented 
to  by  both  parties.  The  plaintiff,  the  attorney  of  one  of  tlie  par- 
ties, who,  at  the  time  of  the  sale,  was  aware  that  the  other  had  not 

1  Wilde  V.  Foote,  4  Taun.  334.  306 ;  Bradshaw  v.  Beiinet,  5  Car.  &  P.  48. 

2  Burrough  v.  Skinner,  5  Burr.  2639.  See  §  41,  n. 

3  Gray  v.  Gutterid,i>e,  3  C.  &  P.  40.  ^  Lee  v.  Munn,  1  Moore,  481. 

4  Walker  v.  Constable,  1  Bos.  &  Pul.         «  Gaby  v.  Driver,  2  You.  &  J.  549. 


94  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

taken  out  administration,  became  the  purchaser,  and  paid  a  deposit 
to  the  auctioneer,  it  being  understood,  at  the  time  of  tlie  sale,  that 
administration  would  be  taken  out.  The  proposed  administrator, 
however,  afterwards  refused  to  do  so,  and  a  good  title  was  not 
made  out.  Held,  the  plaintiff  might  recover  his  deposit  from  the 
auctioneer,  without  notice  of  the  contract  having  been  rescinded.^ 

44.  A.,  as  the  agent  of  the  defendant,  the  owner  of  land,  enters 
into  an  agreement,  with  penalty,  for  the  sale  of  it,  with  B.,  who 
appears  to  act  on  his  own  account,  but  in  fact  is  the  agent  of  the 
plaintiff;  and  B.  pays  part  of  the  purchase-money  as  a  deposit. 
Held,  upon  a  breach  of  the  conditions  of  sale,  on  the  part  of  the 
vendor,  an  action  for  money  had  and  received  lies  to  recover  back 
the  deposit,  without  proof  of  the  money  being  paid  over  by  A.  to 
the  defendant.^ 

45.  On  a  cojitract  for  purchase,  a  part  of  the  purchase-money 
was  paid  as  a  deposit  to  the  vendor's  solicitor,  who  paid  it  away  at 
the  desire  of  the  vendor,  without  the  concurrence  of  the  purchaser. 
This  created  a  difficulty  in  completing  the  purchase,  as  a  mort- 
gagee of  the  estate  would  not  join  in  the  conveyance  without  pay- 
ment to  him  of  the  deposit.  In  a  suit  by  the  purchaser  for  specific 
performance,  the  solicitors  were  declared  liable  to  make  good  the 
money  .^ 

46.  An  attorney,  who  was  also  an  auctioneer,  received  a  deposit 
on  property,  which  he  had  sold  by  auction,  and,  after  queries 
raised  on  the  title,  and  before  they  were  cleared,  paid  over  the 
deposit  to  his  principal.  On  a  demand  of  the  deposit  by  the  buyer, 
he  answered,  that  his  principals  would  not  consent  to  return,  and 
would  enforce  the  contract.  Held,  the  buyer  might  recover  the 
deposit  from  the  auctioneer  as  money  had  and  received  to  the 
plaintiff's  use :  1,  because  the  defendant,  as  attorney,  had  notice 
that  the  title  had  not  been  completed  before  he  paid  over  the 
money  ;  2,  because  he  misled  the  plaintiff  to  sue  him,  by  not  saying 
he  had  paid  it  over.^ 

47.  Where  an  auctioneer,  against  whom  an  action  was  brought 
to  recover  the  deposit  upon  the  ground  that  the  vendor's  title  was 
defective,  applied  for  an  interpleader  rule,  and  it  appeared  that 
the  vendor  had  no  other  property,  the  Court  refused  the  applica- 

1  Duncan  v.  Cafe,  2  Mees.  &  Wels.  244.  »  Wiggins  v.  Lord,  4  Beav.  30. 

2  The  Duke  of  Norfolk  v.  Worthy,  1  *  Edwards  v.  Hodding,  5  Taunt.  815. 
Campb.  337. 


CHAP.  VI.]  SALES  BY  AUCTION.  95 

tion,  unless  the  defendant  gave  security  for  costs  ;  and  refused  to 
allow  the  defendant  his  costs  of  the  application  out  of  the  dejjosit.^ 

48.  Where  the  vendor  of  an  estate  at  auction  is  unable  to  make 
a  good  title,  the  purchaser  cannot  recover  the  deposit  from  him, 
as  money  had  and  received,  though  paid  over  to  him.  The  remedy 
is  against  the  auctioneer,  who  is  the  agent  for  both  parties,  to 
appropriate  the  deposit  to  the  party  entitled  to  it.^ 

49.  If  the  purchaser  demands  his  deposit  at  the  day  for  com- 
pleting the  contract,  and  the  vendor  has  not  delivered  liis  abstract 
before  that  time,  and  also  neglects  to  deliver  it  until  after  an 
action  brought  for  the  deposit ;  it  is  evidence  of  an  abandonment 
of  the  contract  by  the  vendor,  wlio  shall  not  be  entitled  afterwards 
to  a  specific  performance.^ 

50.  If  a  party  has  given  a  bill  of  exchange  or  check  for  the 
amount  of  a  deposit,  on  a  sale  by  auction,  any  ground  on  which  he 
could  recover  back  his  deposit,  if  paid  in  money,  will  be  good 
ground  of  defence,  in  an  action  upon  the  bill  or  check.* 

50  a.  Where  a  party  gave  a  check  for  the  amount  of  a  deposit 
on  a  sale  by  auction,  which  sale  was  void ;  in  an  action  on  the 
check,  he  pleaded  that  there  was  no  consideration  for  the  check ; 
and  the  plaintiff  replied,  that  there  was  consideration.  Held,  on 
this  issue,  the  defendant  must  begin.^ 

51.  Relief  may  be  granted  against  forfeiture  of  the  deposit, 
upon  putting  the  other  party  in  the  same  situation  as  if  the  con- 
tract had  been  performed  at  the  time  agreed.^ 

52.  A  purchaser  before  a  master,  submitting  to  forfeit  his 
deposit,  is  not  bound  to  proceed  in  the  purchase.'^ 

53.  The  Court  will  not  compel  a  vendor  to  pay  the  deposit 
money  into  Court,  though  he  retains  possession  of  the  estate,  if 
the  delay  in  the  completion  of  the  contract  is  occasioned  by  the 
purchaser.^ 

54.  A  vendor,  resisting  an  application  by  the  purchaser  for  pay- 
ment into  Court  of  the  deposit,  in  the  hands  of  the  vendor's  agent, 
was  charged  with  a  loss  by  the  agent's  failure.^ 

55.  Where  a  contract  for  the  sale  of  land  has  been  abandoned, 

1  Deller  v.  Prickett,   2  Eng.  Law  &  *  Mills  v.  Odtly,  6  Car.  &  P.  728. 

Eq.  232.  5  Ibid. 

■'  Johnson  v.  Roberts,  30  Eng.  Law  &  6  Moss  v.  Matthews,  3  Ves.  279. 

Eq.  234.  1  Savile  v.  Savile,  1  P.  Wms.  745. 

3  Lloyd    V.    Collett,   4   Ves.  -690,  n. ;  »  Wynne  v.  (iritlith,  1  Sim.  &  St.  147. 

Radclitfe  v.  Warrington,  12  Ves.  376.  ^  Fenton  v.  Browne,  14  Ves.  143. 


96  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  VI. 

and  an  action  is  brought  for  the  deposit,  and  the  plaintiff  declares 
specially  on  the  contract,  he  must  prove  it  to  have  been  a  valid 
one,  by  a  note  in  writing,  even  though  the  sale  was  by  auction. ^ 

56.  Where  an  auctioneer  has  sold  an  estate,  the  title  of  which 
being  objected  to,  he  refuses  to  return  the  deposit,  and  an  action 
is  brought,  in  which  he  afterwards  pays  the  costs ;  he  cannot 
recover  these  costs  against  the  principal  in  an  action  for  money 
paid  to  his  use,  but  must  declare  specially.^ 

57.  An  auctioneer,  who  is  sued  for  a  deposit,  and  pays  it  into 
Court,  under  an  order  for  the  vendor  and  purchaser  to  interplead, 
is  entitled,  upon  the  termination  of  proceedings  between  the  vendor 
and  purchaser,  to  receive  his  costs  out  of  the  deposit-money.^ 

58.  In  assumpsit  by  vendee  against  vendor  to  recover  back  a 
deposit  paid  on  the  purchase  of  real  property,  the  defendant  at  the 
trial  produced  (under  a  notice  to  produce)  the  agreement,  which 
had  been  signed  at  the  foot  of  the  conditions  of  sale.  Held,  that 
it  was  not  necessary  to  call  the  subscribing  witness  to  prove  the 
execution  of  this  agreement.* 


1  Walker  v.   Constable,   2  Esp.  659 ;  3  Pitchers  v.  Edney,  4  Bing.  N.  721. 

1  Bos.  &  Pull.  806.  *  Bradshaw  v.  Bennet,   5  Car.   &  P. 

2  Spurrier  v,  Elderton,  5  Esp.  1.  48. 


CHAP,  vn.] 


STATUTE    OP    PRAUDS. 


97 


CHAPTER   YII. 


STATUTE   OP    PRAUDS. 


1.  Foi-m  of  contracts  for  tlie  sale  and 
purchase  of  lands.     Statute  of  Frauds. 

1  a.  'I'o  what  parties  and  contracts  the 
statute  applies. 

2.  What  property  is  within  the  statute; 
products  of  the  soil ;  growing  wood,  &c. 

4.  Other  property  connected  with  the 
realty. 

7.  Property  not  within  the  statute;  pro- 
ducts of  the  soil,  &c. 


9.     Paper  securities  relating  to  land. 

10.  Agreement  as  to  houndnnj. 

11.  Whether  the  statute  applies  to  a  claim 
for  the  /)?t"ce. 

14.  Construction  of  the  statute  as  to  the 
form  of  executing  a  written  memorandum; 
what  is  a  signing;  reference  of  different 
papers  to  each  other,  &c. 

20.  Form  of  pleading  or  relying  upon  the 
statute. 


1.  In  the  natural  order  of  subjects,  we  proceed  to  consider  the 
forms  in  which  contracts  for  the  sale  and  purchase  of  lands  must 
be  made.(rt)  By  the  common  law,  contracts  may  be  either  written 
or  unwritten ;  and  a  contract  for  the  sale  of  land  does  not  differ, 
ill  this  respect,  from  others.  But  by  an  English  statute,  29  Car. 
II.  ch.  3,  commonly  called  the  Statute  of  Frauds.,  which  has  proba- 
bly been  adopted,  copied,  or  closely  imitated,  in  every  State  of  the 
Union, (J)  contracts  for  the  sale  of  lands  are  required  to  be  in 


(a)  Such  contract  is  held  good  without 
a  seal.     Worrall  v.  Munn,  1  Seld.  22'.J. 

In  case  of  an  execution  sale,  no  writing 
is  necessary,  except  the  statutory  certifi- 
cate.  Armstrong  v.  Vroman,  11  IMin.  220. 

In  England,  f|uestions  have  frequently 
arisen  with  regard  to  the  necessity  and 
eflf'ect  of  a  stump,  in  contracts  of  this  na- 
ture. 

An  instrument,  purporting  to  be  a  re- 
ceipt for  purchase-money,  but  insufficient, 
as  such,  tor  want  of  a  stamp,  is  still  admis- 
sible, it  seems,  as  evidence  of  an  agreement 
for  sale,  if  it  contain  the  requisite  terms. 
Evans  v.  Protliero,  13  Eng.  Law  &  Eq.  1(33. 
See  Smith  v.  Wyley,  17  Eng.  Law  &  Eq. 
49. 

A  receipt  for  purchase-money  has  been 
allowed  to  be  stamped  as  an  agreement 
during  the  hearing.  Coles  v.  Trecothick, 
9  Ves.  234. 

But  the  Court  cannot  sanction  an  agree- 
ment, that  an  ol^jection  for  want  of  a  stamj) 
shall  be  waived  ;  if,  therefore,  the  olyection 
comes  to  the  knowledge  of  the  Court,  no 
decree  will  be  made,  until  the  instrument, 


duly  stamped,  is  produced  to  the  registrar. 
Owen  V.  Tliomas,3 Myl.  &  Kee.  3')8.  Where 
the  same  paper  contains  two  diflerent  con- 
tracts, for  tlie  piurchase  of  different  lots, 
by  difTerent  persons  ;  one  stamp  aHixed  to 
that  part  of  the  paper  which  contains  tlie 
contract  with  the  defendant,  and  to  which 
the  stamp  officer's  receipt  for  one  penalty 
refers,  is  sufficient  for  such  contract. 
Powell  V.  Edmunds,  12  E.  (5. 

Where  in  a  contract  for  tlie  sale  of  land 
it  was  provided,  that  "  the  vendee  should 
cause  the  title  to  be  examined,  and,  upon 
receiving  a  deed,  properly  executed  "  by 
the  parties  of  the  first  part,  "  should  pay 
the  purchase-money,"  &c.,  it  was  held, 
that  the  vendor  was  liable  to  pay  for  the 
stamp  required  by  the  act  of  1802.  Cal- 
laghan  v.  M'Credy,  48  Penn.  403. 

{b)  See  Brandeis  v.  Neustadtl,  13  Wis. 
142;  Halsmith  v.  Castay,  17  La.  An.  140. 
It  is  said,  in  Kentucky,  the  decisions  of 
the  courts  of  Great  J5ritain,  upon  their 
statute  against  frauds  and  iierjuries,  are  to 
be  respected,  only  so  fiir  as  they  enlighten 
the  understanding  or  convince  the  judg- 


98 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHA:^.  VII. 


writing. (rt)     The  words  of  the  English  statute  are  as  follows: 
"  No  action  shall  be  broiight,  whereby  to  charge  any  person  upon 


ment ;  not  as  evidences  of  tlie  proper  con- 
struction of  a  similar  statute  of  Kentucky. 
Grant  v.  Craigmilcs,  1  Bibb,  203. 

Witli  regard  to  tlie  general  purpose  and 
policy  of  the  statute,  it  is  said  in  a  recent 
case :  "  The  great  purpose  of  the  enact- 
ments commonly  known  as  the  Statute  of 
Frauds,  is  to  guard  against  the  commission 
of  perjury  in  the  proof  of  certain  contracts. 
This  is  effected  by  providing  that  mere 
parol  proof  of  such  contracts  shall  be  in- 
sufficient to  establish  them  in  a  court  of 
justice,  in  regard  to  contracts  for  sales 
of  goods,  one  mode  of  proof  which  the 
statute  adopts  to  secure  this  object,  is 
the  delivery  of  part  of  the  goods  sold.  But 
this  provision  does  not  effectually  prevent 
the  commission  of  perjury  ;  it  only  renders 
it  less  probablC;  by  rendering  proof  in 
support  of  the  contract  more  difficult.  So 
in  regard  to  other  provisions  of  the  same 
statute;  perjury  is  not  entirely  prevented 
by  them  ;  the  handwriting  of  a  party  to 
be  charged,  or  the  agency  of  the  person 
acting  in  his  behalf,  may  still  be  proved 
by  the  testimony  of  witnesses  who  swear 
falsely.  Absolute  prevention  of  perjury 
is  not  possible."  Per  Bigelow,  J.,  Marsh 
V.  Hyde,  3  Gray,  332. 

It  is  also  said:  "  The  statute  dispenses 
witli  no  proof  of  consideration  which  was 
previously  required,  and  gives  no  efficacy 
to  written  contracts  which  they  did  not 
previously  possess.  Its  policy  is  to  impose 
such  requisites  upon  private  transfers  of 
property  as,  without  being  hindrances  to 
fair  transactions,  may  be  either  totally  in- 
consistent with  dishonest  projects,  or  tend 
to  multiply  the  chances  of  detection."  1 
Greenl.  Ev.  §  262.  As  to  the  distinction 
between  the  Statute  of  Frauds,  and  the 
rule  of  common  law,  which  excludes  parol 
evidence  concerning  written  contracts ;  see 
Cuff";;.  Penn,  1  M.  &  8.  26. 

As  to  the  utility  and  proper  construction 
of  the  Statute  of  Frauds,  eminent  Judges 
have  expressed  themselves  as  follows : 
Chief-Justice  Best  says  (Proctor  v.  Jones, 
2  C.  &  P.  534) :  "  The  Statute  of  Frauds 
and  the  Statute  of  Limitations  were  both 
so  much  objected  to  when  they  were 
passed,  that  the  Judges  appeared  anxious 
to  get  them  off'  the  statute-book.  But  in 
later  times,  they  have  become  desirous  to 
give  them  their  full  effect.  I  think  the 
Statute  of  Frauds  is  a  good  and  wholesome 


statute.  In  other  countries,  contracts  are 
made  in  writing."  Bayley,  J.,  says  ( Carter 
V.  Toussaint,  5  B.  &  A.  85y),  that  the  Stat- 
ute of  Frauds  is  a  remedial  law,  and  the 
Court  ought  not  to  endeavor  to  .strain 
words  to  take  a  case  out  of  it.  Chief- 
Justice  Abbott  says  ( Howe  v.  Palmer,  Tem- 
pest V.  Fitzgerald,  3  B.  &  A.  323,  683) : 
"  The  Statute  of  Frauds  was  made  for  wise 
and  beneficial  purposes,  and  ouglit  to  be 
construed  according  to  the  plain  meaning 
of  the  legislature.  It  is  a  highly  benefi- 
cial and  remedial  statute."  Best,  J.,  says 
(Howe  V.  Palmer,  3  B.  &  A.  326)  :  "  So  far 
from  being  disposed  to  restrain  the  provi- 
sions of  this  statute,  I  should  be  inclined 
to  extend  them."  —  "  It  is  better  to  adhere 
to  the  words  of  the  statute,  unless  we 
plainly  see  that  the  words  used  do  not 
express  the  meaning  of  the  legislature." 
Lord  Kenyon  says  (Chaplin  r.  Rogers,  1 
E.  194)  :  "  It  is  of  great  consequence  to 
preserve  unimpaired  the  several  provisions 
of  the  Statute  of  Frauds,  which  is  one  of 
the  wisest  laws  in  our  statute-book."  Wes- 
ton, J.,  says  (Phillips  v.  Hunnewell,  4 
Greenl.  380) :  "  The  Statute  of  Frauds  is 
a  very  beneficial  act ;  and  its  objects  are 
best  secured  by  adhering  strictly  to  its 
provisions,  unless  in  cases  which  clearly 
do  not  fall  within  the  meaning."  In  In- 
diana, an  agreement  for  the  purchase  and 
sale  of  real  estate,  not  being  in  writing,  is 
inoperative  under  the  Statute  of  Frauds, 
unless  some  facts  in  the  case,  making  a 
contrary  equity,  remove  it  out  of  the  stat- 
ute. Junction,  &c.  v.  Harpold,  19  Ind. 
347. 

Whether  tlie  Statute  of  Frauds,  in  re- 
quiring that  in  certain  cases  the  "  agree- 
ment" be  proved  by  writing,  requires  that 
the  consideration  should  be  expressed  in 
the  writing  as  part  of  the  agreement,  is 
a  point  which  has  been  much  discussed, 
and  upon  which  the  English,  and  some 
American,  cases  are  in  direct  op])osition. 
The  English  Courts  hold  the  affirmative. 
See  Wain  i\  Warlters,  5  E.  10 ;  reviewed 
and  confirmed  in  Saunders  r.  Wakefield, 
4  B.  &  Aid.  -595.  And  their  construction 
has  been  followed  in  New  York  :  Sears  v. 
Brink,  3  Johns.  210 ;  Leonard  v.  Vreden- 
burg,  8  Johns.  29.  In  New  Hampshire, 
in  Neelson  v.  Sanborne,  2  N.H.  414, 
the  same  construction  seems  to  be  recog- 
nized and  approved.     But,  in  Massachu- 


(a)  Where  the  verbal  evidence  of  an     Frauds  ought  especially  to  apply  against 
agreement  is  contradictory,  the  Statute  of    it.    Rowton  v.  Rowton,  1  Hen.  &  Munf  92. 


CHAP.    VII.]  STATUTE    OF    FRAUDS.  99 

any  agreement  made  upon  any  contract  or  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them,  unless  the 
agreement,  upon  which  such  action  shall  lie  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  lawfully  authorized." 

1  a.  The  question  often  arises,  to  what  j^n-rf/g-s  this  provision  of  the 
statute  is  applicable.  It  is  held,  that  a  tenant  in  common,  in  posses- 
sion, cannot  validly  sell  by  parol  to  his  cotenant  in  possession.'  So 
where  a  purchaser  at  a  partition  sale  agreed  with  one  of  the  parties 
to  the  partition  suit,  who  was  entitled  to  the  largest  share  of  the 
proceeds  of  the  sale,  and  who  was  in  possession  at  the  time,  that 
"  he  should  keep  the  place  upon  a  price  to  be  afterwards  aoreed 
upon  ;  "  the  agreement  was  held  to  be  within  the  statute.^  So  an 
agreement  of  copartnership  between  plaintiff  and  defendant,  and 
that  they  should  hold  as  tenants  in  common  all  real  estate  acquired 
by  them.3  So  verbal  sales  by  administrators,*  or  an  agreement  by 
a  cestui  que  trust  for  the  conveyance  of  his  interest ;  ^  or  a  parol 
agreement  for  the  conveyance  by  mortgagor  to  mortgagee  of  a  part 
of  the  mortgaged  premises,  and  for  a  lease  of  the  right  to  maintain 
a  hydraulic  ram  at  a  certain  spring,  and  to  pay  a  certain  sum  of 
money,  and  give  a  note,  and  deliver  a  specified  number  of  cords 
of  wood ;  the  whole  in  satisfaction  of  the  mortgage  debt.*^  So  an 
agreement  for  the  sale  of  land,  by  an  agent  whose  authority  is  lim- 
ited in  time,  is  not  binding  upon  his  principal,  unless  a  written 
memorandum  of  the  sale  is  delivered  to  the  purchaser  before  the 
expiration  of  the  agency.'^ 

1  Hill  V.  Meyers,  43  Penn.  170.  ^  Ridiards  v.  Richards,  9  Gray,  313. 

2  Wiley  V.  Robert,  31  Mis.  212.  «  Starin  r.  Newcomb,  13  Wis.  519. 
^  Thorn  v.  Thorn,  11  Iowa,  146.  "'  Johnson  v.  Craig,  21  Ark.  533. 

4  Bozza  V.  Rowe,  30  111.  198. 

setts,  it  was  rejected  by  the  whole  Court,  It  has  been  held,  in  California,  that  a 

upon  great   consideration,  in   Packard  v.  parol  agreement  for  the  sale  of  land,  made 

Richardson,  17  Mass.  122.     So  in  Maine,  before  the  adoption  of  the  common  law,  or 

Levy  V.  Merrill,  4  Greenl.  180;  in  Con-  tlie  re-enactment  of  the  Statute  of  Frauds, 

necticut,  Sage  v.  Wilcox,  6  Conn.  81  ;  in  is  void,  unless  possession  be  taken,  or  part 

New    Jersey,    Buckley    v.   Beardsiey,    2  j)ayment  made.     Harris  v.  Brown,  1  Cal. 

South.  570  ;  and  in  North  Carolina,  Miller  98;  Hoen  v.  Simmons,  ib.  119. 
V.  Irvine,  1  Dev.  &  Bat.  103  ;  and  now  in  But  performance  will  be  decreed,  if  the 

South  Carolina,  Fyler  v.  Givens,  Riley's  sale  is  in  pnfscnti,  the  title-deed  delivered, 

Law  Cas.  56,  02,  overruling  Stephens  v.  possession  taken,  and   vahiable  improve- 

Winn,  2  N.  &  M'C.  372,  n. ;  Woodward  ments  made,  to  such  an  extent  as  to  work 

V.  Picket,  Dudley,  30.     See  also  Violet  v.  a  fraud  upon  the  vendee  if  his  title  should 

Patton,  5  Cranch,  142 ;  Taylor  v.  Ross,  3  fail.     Tohler  v.  Folsom,  1  Cal.  207.     See 

Yerg.  3.30  ;  3  Kent's  Comm.  122  ;  2  Stark.  Albert  v.  Ross,  5  Md.  GO. 
Ev.    350,    tjth    Am.   ed. ;    1   Greenl.  Ev. 
§  268,  n.  3. 


100  LAW  OF  VENDORS  AND  PURCHASERS.     [cHAP.  VII. 

1  h.  It  has  been  licld,  that  an  agreement  to  procure  a  conveyance 
of  lands  is  not  within  the  statute.^  But,  on  the  other  hand,  that, 
althougli  the  statute  speaks  only  of  the  sale  of  lands,  yet  it  also 
includes  contracts  to  buy  land  for  another.^' 

2,  The  statute  contemplates  a  transfer  of  lands,  or  some  interest 
in  them  •,^  and  one  of  the  questions  most  frequently  arising  in  its 
construction  is,  to  what  property  it  applies  ;  or,  in  other  words, 
what  are  lands  within  the  meaning  of  the  statute.  This  question 
has  for  the  most  part  occurred  with  reference  to  growing  and 
movable  products  of  the  land,  which  are  attached  to,  though  not 
strictly  making  part  of,  the  soil. 

3.  It  has  been  held,  that  growing  trees  (or  timber)  are  real  estate, 
and  cannot  pass,  except  by  an  instrument  in  writing.*  As  where 
they  are  to  be  taken  by  the  purchaser  within  a  certain  time,^  or 
where  the  right  is  given  him  at  any  future  time  to  take  and  cut  as 
he  may  want  them.^  Thus  the  sale  of  growing  timber,  with  an 
agreement  that  the  purchaser  should  have  twenty-five  years  to 
remove  it,  was  held  within  the  statute,  upon  the  ground  that  it 
purported  to  transfer  an  interest  in  land,  as  the  vendee  was  to 
have  the  timber  remain  and  grow,  if  he  pleased,  and  remove  it 
whenever  he  might  see  fit,  during  the  period  prescribed.''  No  action 
lies  upon  such  an  agreement ;  nor,  while  executory,  can  it  in  any 
way  be  made  available  as  a  contract.  If  made  for  valuable  consid- 
eration, the  vendee  has  a  valid  title  to  any  trees  which  he  may  cut ; 
but  not  such  a  title  to  those  which  remain,  he  not  having  taken 
exclusive  possession  of  the  land,  as  will  sustain  an  action  against 
one  who  enters  and  cuts  and  carries  away  trees ;  although  tlie 
vendee  have  paid  the  full  consideration.  And  an  exception,  in  a 
subsequent  conveyance  of  the  land,  of  the  trees  previously  sold,  is 
not  a  sufficient  memorandum  within  the  statute. (a)     So  it  is  held, 

1  Bannon  v.  Bean,  9  Iowa,  395.  "  Buck  v.  Pickwell,  1  Wms.  (Vt.),  157. 

••i  Hocker  v.  Gentry,  3  Met.  ( Ky.),  463.  ^  Olrastead  v.  Miles,  7  N.H.  5-22  ;  Green 

3  Bostwick  V.  Leach,  3  Day,  476.  v.  Armstrong,  1  Denio,  550.     See  Austin 

■*  Hutchins  v.  King,  1  Wall,  53  ;  Pierre-  v.  Sawyer,  9  Conn.  39  ;  Whipple  v.  Foot, 

pont  I'.  Barnard,  5  Barb.  364.     See  Bur-  2  Johns.   422;    Stewart    v.   Doughty,  9 

gett  V.  Bissell,  14  Barb.  638.  Johns.  112. 
5  Putney  w.  Day,  6  N.H.  430. 

(a)  1  Wms.  157.     "  It  may,  perhaps,  the  sale  of  land,  or  "any  interest  in  it,  or 

with  some  degree  of  certainty  be  said,  that,  concerning  it,  and  that  it  is  not  material 

at  the  present  day,  a  contract  for  the  sale  of  wliether  they  have  come  to  maturity  or 

growing  crops,  produced  annually  by  labor  not  at  the  time  of  the  sale;  or  whether 

and  the  cultivation  of  the  earth,  and  which  they  are  to  be  cut  and  taken  off  of  the 

are   included  within  the  meaning  of  the  ground   by   the    vendor    or   the   vendee, 

term  ' emlilements,'  is  not  a  contract  for  There  would  seem  to  be  some  reason  for 


CHAP.    VII.] 


STATUTE    OF    FRAUDS. 


101 


that  an  agreement  for  the  sale  oi  groiving  pears  is  an  agreement  for 
the  sale  of  an  interest  in  land,  because  they  would  pass  to  the 
heirs,  not  to  the  executor.^  So  it  is  held,  that  growing  croi)S  are 
not  goods  or  chattels  within  the  meaning  of  §  15  of  the  (Cal.) 
Statute  of  Frauds,  and  will  pass  by  deed  or  conveyance.^  So 
in  case  of  a  verbal  purchase  of  a  growing  crop  o^  c/rass,  with  liberty 
to  go  on  the  close,  for  the  purpose  of  cutting  and  carrying  it  away  ; 
held,  the  purchaser  could  not  maintain  trespass  against  the  seller 
for  taking  away  his  horse  and  cart  from  the  close,  whicli  he  had 
brought  there  for  the  purpose  of  carrying  away  the  grass ;  the 
action,  in  substance,  charging  the  defendant  on  the  co7itract,  within 
the  statute.^  So  although  one  who  has  contracted  witli  the  owner  of  a 
close,  for  the  purchase  of  a  growing  crop  of  grass  there,  to  be  mown 
and  made  into  hay,  has  such  an  exclusive  possession,  though  for  a 
limited  purpose,  that  lie  may  maintain  trespass  qu.  d.  against  any 
person  entering  the  close  and  taking  the  grass,  even  with  the  assent 
of  the  owner ;  still,  this  being  a  contract  or  sale  of  an  interest  in 
or  concerning  land,  it  may  be  discharged  by  parol  notice  from  the 
owner,  before  any  part-execution.^     So  a  sale  of  growing  turnips. 


1  Rodwell  V.  Pliillips,  9  M.  &  W.  501. 

2  Bernal  v.  Hovious,  17  Cal.  541. 

3  Carrington  v.  Roots,  1  Mees.  &  W. 
248. 

making  a  distinction  between  a  growing 
crop  of  grass  or  growing  trees,  and  a  field 
of  wlieat  or  corn  or  other  emblements. 
Emblements  seem  to  be  distinct  from  the 
real  estate,  and  subject  to  many  of  the 
incidents  attending  personal  chattels.  But 
the  word  kuid  is  comprehensive  in  its 
meaning,  and  comprehends  growing  grass 
and  standing  trees.  Standing  trees  must 
be  regarded  as  part  and  parcel  of  the  land 
in  which  they  are  rooted.  The  case  of 
Dunn  i\  Ferguson,  cited  in  2  Stcph.  N.  P., 
from  Hayes  (Irish),  542,  marks  well  the 
distinction,  and  the  grounds  upon  which 
the  sale  of  a  growing  crop  is  not  a  contract 
for  an  interest  in  land.  The  case  was,  the 
defendant  sold,  by  verbal  contract,  to  the 
plaintiff,  a  crop  of  turnijjs,  which  he  had 
previously  sown ;  and  some  time  after, 
and  while  the  turnips  were  in  tlie  ground, 
the  defendant  dug  them  and  carried  them 
away.  Chief-Baron  Joj'  says  :  '  Whether 
there  has  been  a  contract  concerning  an 
interest  in  land,  or  whether  it  merely  con- 
cerns goods  and  chattels,  must  depend 
upon  the  question,  whether  a  growing 
croji  is  goods  and  chattels  ; '  and  ujjon  this, 
he  says,  '  the  decisions  have  been  very 


4  Crosby  v.  Wadsworth,  6  East.  610 
(a  leading  case).  See  Frear  v.  Ilarden- 
t)urgh,  5  Johns.  272. 


contradictory  ;  a  result  always  to  be  ex- 
pected when  the  Judges  give  tliemselves 
up  to  fine  distinctions.'  The  Court,  in 
that  case,  base  their  decision  upon  the 
ground,  that,  at  connnon  law,  growing 
crops  were  uniformly  held  to  be  goods, 
and  subject  to  all  the  leading  consequences 
of  being  goods ;  and  that  the  Statute  of 
Frauds  took  things  as  it  found  them,  and 
provided  for  lands  and  goods  according  as 
they  were  esteemed  at  tlie  time  of  its 
enactment.  This  seems  to  put  the  case 
on  some  tangible  ground.  If,  before  the 
statute,  a  growing  crop  had  been  held  to 
be  an  interest  in  lands,  under  the  statute, 
a  contract  respecting  it  must  have  been 
to  give  it  vitality,  in  writing.  We  think 
the  whole  current  of  modern  law  is  in  con- 
formity to  the  distinctions  marked  out  in 
the  case  of  Dunn  v.  Ferguson,  and  it  is 
thus  put  upon  some  rational  ground.  It 
would  seem  to  follow  as  a  necessary  corol- 
lary, that  a  contract  for  the  sale  of  stand- 
ing trees,  with  a  right,  at  a  future  time,  to 
enter  upon  the  land  to  remove  them,  did 
concern  an  interest  in  land."  Per  Bennett, 
J.,  1  Wms.  1G3. 


102 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 


110  time  being  stipulated  for  their  removal,  and  the  degree  of  their 
maturity  not  being  positively  found,  is  a  sale  of  an  interest  in  land, 
and  must  be  in  writing.^  So  the  sale  of  growing  underwood,  to  be 
cut  by  the  purchaser,  confers  an  interest  in  land,  under  the 
statute  .2(a) 

4.  The  same  question  has  arisen,  and  the  same  rule  been 
adopted,  in  reference  to  other  kinds  of  property,  not  being  strictly 
real  estate,  but  partaking,  more  or  less,  of  the  character  of  chat- 
tels.    Thus  a  declaration  in  assumpsit  alleged,  that  the  plaintiff 


1  Emmerson  v.  Heelis,  2  Taunt.  38. 


2  Scorell  V.  Boxall,  1  You.  &  Jerv.  396. 


(a)  See  Andrew  v.  Newcomb,  32  N.Y. 
417.  Verbal  sale  of  growing  wood,  by  the 
defendant,  with  a  right  to  cut  it  within  a 
certain  time,  but  without  any  express 
authority  to  assign  the  contract.  The 
purchaser  cut  part  of  the  wood,  left  it  on 
the  land,  and  sold  it,  with  all  his  rights 
under  the  contract,  to  the  plaintitf,  whom 
the  defendant  autliorized  to  remove  the 
remaining  wood,  but  afterwards  revoked 
the  authority,  and  burned  the  wood. 
Held,  he  was  liable  to  an  action  for  so 
doing.  Nelson  v.  Nelson,  (Mass.)  Law 
Eep.  Nov.  1856,  p.  411. 

Declaration,  tliat  the  plaintiff  was  pos- 
sessed of  a  farm  upon  which  were  growing 
crops,  and  on  which  tlie  plaintiff  had  done 
work  and  labor,  and  expended  materials, 
in  making  the  lauds  ready  for  tillage,  of 
which  work  the  plaintiff  had  not  derived 
the  benefit ;  and  that,  in  c(jnsideration  that 
the  plaintiff  would  let  the  farm  to  the  de- 
fendant for  fourteen  years,  the  defendant 
undertook  to  take  tlie  crops  and  pay  for 
them,  and  for  the  work,  according  to  a 
valuation;  that  the  plaintiff  let  the  farm 
accordingly,  and  left  the  crops  upon  it, 
and  the  defendant  took  possession  and  had 
the  benefit  of  the  work,  &c.,  and  the  valu- 
ation was  made,  but  the  defendant  did  not 
pay.  Plea,  that  the  crops,  and  the  benefit 
of  the  work,  &c.,  were  not  excepted  or 
reserved  out  of  the  letting  or  agreement 
to  let,  and  there  was  no  agreement  in 
writing,  in  respect  of  those  causes  of  action, 
or  any  memorandum  or  note  thereof, 
signed  by  the  defendant  or  any  person  by 
him  lawfully  authorized.  Held,  on  demur- 
rer, that  the  contract  was  for  an  interest 
in  land,  and  the  right  to  the  crops,  and  the 
benefit  of  the  work  and  labor,  were  both 
of  them  an  interest  in  land,  within  the  4th 
section  of  the  Statute  of  Frauds.  Falmouth 
V.  Thomas,  1  Cromp.  &  Mees.  89. 

Indebitatus  count,  for  crops  bargained 
and  sold,  accepted  and  taken,  had  and 


received,  and  cut  down  by  the  defendant. 
Plea,  that  the  crops,  at  the  time  of  the 
bargain  and  sale,  were  growing  upon  and 
afiixed  to  certain  lands  ;  and,  before  the 
bargain  and  sale,  there  was  a  treaty  on 
foot  between  the  plaintiff  and  the  defend- 
ant, proposing  that  the  plaintifi"  should  let 
the  lands  to  the  defendant,  and  the  defend- 
ant take  therewith  the  crops ;  that  the 
defendant  assented  to  the  treaty  ;  and,  in 
order  to  carry  it  into  effect,  the  supposed 
bargain  and  sale  was  verbally  contracted ; 
and  there  was  no  agreement  in  writing,  or 
any  memorandum  or  note  thereof.  Held, 
the  crops  were,  at  the  time  of  the  bargain 
and  sale,  an  interest  in  the  land,  and  the 
case  was  within  the  statute.  And  the 
same  point  was  held,  on  a  similar  plea,  to 
a  count  for  work,  labor,  and  materials. 
Ibid. 

Indebitatus  assumpsit  upon  an  account 
stated.  Plea,  that,  before  the  taking  of 
the  account,  there  was  a  verbal  agreement 
for  the  sale  of  crops  growing  upon  the 
plaintiff's  land,  and  for  woi'k,  labor,  and 
materials,  done  and  used  in  preparing  the 
land  for  tillage  ;  and  a  treaty  for  the  plain- 
tift''s  letting,  and  the  defendant's  taking, 
the  land  for  fourteen  years,  to  which  the 
defendant  assented  ;  and  that  the  money 
to  be  paid  for  the  crops,  and  the  work, 
&c.,  was  the  money  concerning  which  tlie 
account  was  stated ;  and  there  was  no 
agreement  in  writing,  nor  any  note  thereof. 
Replication,  that,  before  the  account  was 
stated,  the  defendant  had  mown  the  crops, 
and  taken  them  to  his  own  use,  and  had 
and  received  the  amount  of  the  work  and 
labor  and  materials.  Rejoinder,  travers- 
ing that  defendant  had  cut  down  the  crops, 
and  received  the  amount  of  the  work  and 
labor,  &c.,  before  the  stating^  of  the  ac- 
count. General  demurrer.  Held,  the  con- 
tract, as  appearing  on  the  pleadings,  was 
within  the  statute,  and  the  plaintiff  could 
not  recover.     Ibid. 


CHAP.    VII.]  STATUTE    OF    FRAUDS.  103 

was  desirous  of  taking  a  funiislicd  house  as  a  scliool  ;  that  the 
defeudant  was  possessed  of  a  house  in  part  furnished,  and  all  other 
furniture  necessary  for  the  completely  furnishing  the  same  ;  and 
tliereupon,  in  consideration  that  the  plaintiff,  at  the  request  of  the 
defendant,  would  take  possession  of  said  house,  and  would,  if  the 
furniture  necessary  for  the  completely  furnishing  said  house  for 
the  purpose  aforesaid  should  be  sent  into  said  house  by  the 
defendant  within  a  reasonable  time,  become  the  tenant  of  the 
house,  with  the  furniture,  at  the  rent  aforesaid,  and  pay  the  rent 
quarterly,  commencing,  etc.,  the  defendant  promised  the  plaintiff, 
that  ho  would,  within  a  reasonable  time  after  the  plaintiff  should 
have  so  taken  possession,  send  into  the  house  all  the  furniture 
necessary  for  furnishing  the  house  with  furniture  of  good  quality ; 
that  the  plaintiff  took  possession  of  the  house,  but  the  articles 
of  furniture  sent  were  not  of  good  quality,  and  all  the  furniture 
necessary  for  the  furnishing  was  not  sent  in.  Plea,  that  there  was 
no  note  or  memorandum  in  writing  of  the  promise  stated.  Held, 
on  demurrer,  that  the  promise  related  to  land,  and  no  action  could 
be  maintained  upon  it.^(6«) 

5.  A  parol  contract  for  the  sale  of  both  real  and  personal  prop- 
erty, if  entire,  and  founded  on  one  consideration,  being  void  as  to 
the  former,  is  void  for  the  whole.  So  held  in  case  of  the  sale 
of  wood  or  timber  composing  a  broken-do.wn  mill  in  connection 
witli  the  mill-site,  &c.^  So  a  contract  to  hire  a  shop  at  a  certain 
rent,  and  pay  the  landlord  the  expense  of  fitting  it  up,  was  held  an 
entire  contract,  and  within  the  Statute  of  Frauds,  as  it  concerned 
an  interest  in  lands. ^ 

6.  The  statute  is  held  applicable  to  a  contract  for  the  sale  of  a 
"  right  to  dig  and  carry  away  ore  "  from  the  mine  of  another  per- 
son ;  "^  though  a  verbal  contract  for  such  right  is  valid  as  a  license, 

1  Mechelen  v.  "Wallace,  2  Nev.  &  Perr.  ^  M'Mullen  v.  Riley,  (Mass.)  Law  Rep. 
224  ;  7  Ad.  &  Ell.  49.  Dec.  18.56,  p.  439. 

2  Thayer  v.  Rock,  1-3  Wend.  53.  *  Riddle  v.  Brown,  20  Ala.  412.     See 

Copper,  &c.  V.  Spencer,  25  Cal.  18. 

(a)  By  a  parol  agreement  between  the  either  side.  The  plaintiff  having  sued 
plaintiff,  a  boarding-house  keeper,  and  the  the  defendant  for  retu-sing  to  become  an 
defendant,  tlie  defendant  agreed  to  pay  inmate  of  the  boarding-house,  held,  the 
the  plaintiff,  for  the  board  and  lodging  action  was  maintainable,  as  the  contract 
of  himself  and  man,  and  accommodation  was  not  one  for  any  interest  in  or  con- 
fer his  horse,  at  the  boarding-house,  £200  cerning  land.  Wright  v.  Stavert,  2  Ellis 
a  year  from  a  fi.xed  day  ;  the  agreement  &  E.  721. 
to  be  terminable  by  a  quarter's  notice  on 


104  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 

and  a  protection  to  the  party  acting  under  it,  and  vests  in  liim  a 
title  to  the  ore  actually  taken  .^  But  the  license  is  revocable, 
personal,  and  not  assignable.^(a)  So  a  right  of  permanently  over- 
flowing the  land  of  another,  by  a  mill-dam  to  be  constructed  below 
his  line,  is  an  hereditament ;  and  a  contract  for  the  sale  of  it  must 
therefore  be  in  writing.^  So  a  contract  made  by  an  owner  of  land 
with  the  commissioners,  under  the  act  relative  to  draining  the 
drowned  lands  in  Orange  County, (5)  by  which  they  were  allowed 
to  use  each  bank  of  the  River  Wallkill,  &c.,  which  they  might  find 
necessary  in  removing  all  obstructions,  and  in  deepening  and 
widening  the  river,  &c.,  and  to  use,  occupy,  and  enjoy  the  same, 
and  for  which  they  were  to  pay  a  compensation  for  the  damages 
to  the  owner,  who  agreed  to  allow  them  to  cut  a  canal  through 
his  lands,  was  held  to  be  a  contract  concerning  an  interest  in 
lands,  within  the  statute.^  So,  in  New  York,  the  statute  applies 
to  the  sale  of  a  ipeiv^  So  the  statute  has  been  held  to  apply  to 
the  sale  of  a  leasehold  interest ;  as  in  case  of  an  agreement  by  a 
tenant  for  a  sale  and  delivery  of  the  premises,  the  purchaser  agree- 
ing to  pay  the  rent,  rates,  and  taxes.*^  So  a  claim  for  specific 
performance  cannot  be  maintained,  upon  the  allegation  that  the 
defendant  had  agreed  in  writing  to  demise  a  house  to  the  plaintiff 
for  a  certain  term  and  rent,  and  that  the  plaintiff  at  the  same 
time  agreed  by  parol  to  pay  the  defendant  a  premium  of  £200 ; 
praying  that  a  lease  be  granted,  and  offering  to  pay  the  premium.'^ 
So  A,  and  B.,  severally  negotiating  to  purchase  a  house  and  land, 
agreed  by  parol,  that  A.  should  withdraw,  and  B.  purchase,  giving 
to  A.  a  part  of  the  ground  at  a  proportionable  price.  B.  pur- 
chased, but  refused  to  perform  the  agreement.  Held,  within  the 
statute.^ 

7.  With  reference,  however,  to  the  sale  of  things  growing  upon 
the  land,  decisions  have  been  made,  somewhat  conflicting  with 

1  Ibid.  5  Vielie  v.  Osgood,  8  Barb.  130. 

2  Ibid.  ^  Smart  v.  Harding,  29  Eng.  Law  & 

3  Bridges  v.  Purcell,   1  Dev.  &  Bat.     Eq.  252. 

192 ;  Harris  v.  Miller,  1  Meigs,  158.  "^  Martin  v.  Pycroft,   11  Eng.  Law  & 

4  Phillips  V.  Thompson,  1  Johns.  Ch.     Eq.  110. 

131.  8  Lamas  v.  Bayly,  2  Vern.  627. 

(o)   No  writing  is  required,  to  vest  or  subsidiary  thereto,   which   is  sufficiently 

divest  title  upon  taking  up  a  mining  claim,  acquired  and  fixed  by  following  the  min- 

The   Statute  of  Frauds  does  not  apply,  ing  rules.    Gore  v.  McBrayer,  18  Cal.  582. 

The  paramount  title  being  in  government,  See  ch.  8. 
the  locator  has  only  a  permissive  claim  (6)  Sess.  30,  ch.  25. 


CHAP.    VII.]  STATUTE    OF    FRAUDS.  105 

those  already  cited.^(rt)  In  general  terms,  it  is  said,  a  contract 
for  the  sale  of  things  annexed  to  the  freehold,  bnt  which  are  capa- 
ble of  separation  without  violence,  and  Ijy  the  terms  of  the  contract 
are  to  be  separated,  is  not  within  the  statute.'-^  So,  it  is  said,  a 
contract  for  the  sale  of  a  growhig  crop,  the  product  of  periodical 
planting  and  cultivation,  —  for  example,  a  crop  of  potatoes,  —  is 
essentially  the  same,  whether  they  arc  covered  with  earth  in  a 
field,  or  stored  in  a  box  :  in  either  case,  tlie  thing  sold  is  but  a 
personal  chattel,  and  so  not  within  the  statute.'^  So  hops  ui)on  the 
vine  are  personal  chattels  within  the  Statute  of  Frauds,  and  may 
be  sold  as  such.'^  So  it  has  been  held,  that  a  contract  for  the  sale 
of  growing  wood  and  timber,  to  be  cut  and  removed  by  the  pur- 
chaser, or  in  contemplation  of  their  immediate  removal  from  the 
soil  by  either  party,  is  a  constructive  severance,  and  not  within 
the  statute,  the  effect  of  it  being  to  pass  an  interest  in  the  trees 
when  severed,  but  not  any  interest  in  the  land.^  So  an  agreement 
for  the  sale  of  mulberry-trees  growing  in  a  nursery,  and  raised  to 
be  sold  and  transplanted,  and  to  be  delivered  on  the  ground  where 
they  are  growing,  on  payment  being  made ;  ^  or  an  agreement 
that  a  person  not  the  owner  of  the  land  may  cut  down  the  trees, 
peel  them,  and  take  the  bark ; "  or  a  sale  of  grass  already  grown, 
and  in  a  condition  to  be  cut.^(ft)  So  the  plaintiff  and  defendant 
orally  agreed,  in  August,  that  defendant  should  give  £45  for  the 
crop  of  corn  on  plaintiff's  land,  and  the  profit  of  the  stubble  after- 

1  Jenkes  v.  White,  14  Eng.  Law  &  Eq.  5  Claflin  v.  Carpenter,  4  Met.  580  ; 
350;  Sweeny  v.  Miller,  34  Maine,  388;  Cain  v.  M'Guire,  13  B.  jMon.  340;  Ers- 
Preble  v.  Baldwin,  6  Cush.  549 ;  Parker  kine  v.  riummer,  7  Greenl.  447  ;  Byassee 
V.  Staniland,  11  E.  362.  v.  Reese,  4  Met.  (Ky.),  372. 

2  Bostwick  V.  Leach,  3  Day,  476.  6  Whitmarsh  v.  Walker,  1  Met.  318. 

3  Warwick  v.  Bruce,  2  M.  &  S.  205 ;  ^  Nettleton  v.  Sikes,  8  Met.  34. 
Marshall  v.  Ferguson,  23  Cal.  65.                        8  Cutler  v.  Pope,  13  Maine,  380. 

4  Frank  v.  Harrington,  36  Barb.  415. 

(17)  It  is  said,  "No  general  rule  is  laid  (/oods.    Long  on  Sales  (Rand),  80,  81.    But 

down   in   any  one  of  tlieni,  that   is  not  it  is  said  the  later  English  ami  the  Ameri- 

contradicted  by  some  others."     Per  Ld.  can  autliorities  do  not  seem  to  recognize 

Abinger,  Rodwell  v.  Phillips,  9  M.  &  W.  sucli  distinction. 

505.     The  distinction  upon  this  point  lias  {h)  Agreement  for  the  purchase  of  the 

been  supposed  to  depend  on  the  question,  herbage  of  a  close  for  five  months,  for 

whether  the  subject  of  contract,  being  part  £45;  £10  to  be  paid  down,  and  a  joint 

of  the  inheritance,  is  to  be  severed  and  promissory  note   given   for   the   residue, 

delivered  by  the  vendor  as  a  chattel,  or  payable  within  the  five  months  ;  the  les- 

whether  a  right  of  entry  is  given  to  the  see  to  yield  up  possession  at  the  end  of 

purchaser  to  cut  and  take  the  property ;  that  time,  and,  if  he  failed  to  give  a  satis- 

the  4th  section  of  the  statute  being  appli-  factory  note,  the  vendor  to  be  at  liberty 

cable  to  the  latter  case,  but  not  to  the  to  relet  the  premises.     Ilelil,  sufficiently 

former,  which,  however,  would  tidl  within  stiimped  with  a  £1  stamp.    Cattle  v.  Gam- 

the  17th  section,  relating  to  the  sale  of  ble,  5  Bing.  N.R.  40. 


106  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 

wards ;  that  plaintiff's  cattle  might  run  with  defendant's  ;  that 
defendant  should  have  some  potatoes  growing  on  the  land,  and 
whatever  lay  grass  was  in  the  fields ;  should  harvest  the  corn, 
and  dig  up  the  potatoes ;  and  plaintiff  pay  the  tithe.  Held,  not  a 
contract  for  any  interest  in  land,  but  a  sale  of  goods  and  chattels, 
as  to  all  but  the  lay  grass  ;  and,  as  to  that,  a  contract  for  the 
agistment  of  defendant's  cattle.^  So  where  the  defendant,  in  June, 
agreed  to  sell  to  the  plaintiff  the  potatoes  then  growing  on  land 
of  the  defendant  at  2s.  per  sack,  the  plaintiff  to  have  them  at  the 
digging-up  time  (October),  and  to  find  diggers  ;  held,  not  a  con- 
tract for  the  sale  of  an  interest  in  land.^  So  a  verbal  agreement, 
made  on  the  25tli  of  September,  for  the  sale  of  a  then  growing 
crop  of  potatoes,  is  not  a  contract  or  sale  of  any  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them.^  So  tlie 
plaintiff  verbally  agreed  with  the  defendant  to  sell  him  the  timber 
growing  on  his  land  at  so  much  per  foot.  Defendant  afterwards 
offered  to  sell  the  buts  of  the  trees  to  a  third  person,  and  said  he 
would  convert  the  tops  into  building-stuff.  Plaintiff  afterwards, 
by  letter,  required  defendant  to  pay  for  the  timber  which  he  had 
bought  of  him.  Defendant  wrote  a  letter  in  answer,  stating  that 
he  had  bought  the  timber,  but  that  he  had  bought  it  to  be  sound 
and  good,  and  it  was  not  so.     Held,  not  within  the  statute.*(a) 

8.  A  parol  contract  for  the  sale  of  improvements  on  the  public 
lands  is  valid.^  So  a  contract  for  the  sale  of  improvements  on 
land,  consisting  of  houses,  is  not  within  tlie  statute  ;  ^  nor  an 
agreement  by  a  tenant  at  will  to  transfer  his  title,  as  he  has  no 
assignable  interest ; "  nor  an  agreement  not  to  exercise  a  right 
regarding  the  freehold,  as  to  use  a  mill,  or  to  carry  on  a  trade  in 
a  particular  shop.^ 

1  Jones  V.  Flint,  10  Ad.  &  Ell.  753.  *  Smith  v.  Surman,  9  Barn.  &  Cress.  566. 

2  Sainsbury  v.  Matthews,  4  Mees.  &  ^  Zickafosse  v.  Hulick,  1  Morr.  175. 
Wels.  343.  6  Cassell  v.  CoUins,  23  Ala.  676. 

3  Evans  v.  Roberts,  5  Barn.  &  Cress.  ''  Whittemore  v.  Gibbs,  4  Fost.  484. 
829.  8  Bostwick  v.  Leach,  3  Day,  476. 

(a)  Assumpsit  for  goods  sold,  and  on  fendants  had  not  admitted  a  precise  and 
an  account  stated,  to  recover  the  value  definite  sum  to  be  due  to  the  plaintiff, 
of  growing  poles,  purchased  from  the  and  therefore  he  could  not  recover  on  the 
plaintiff  by  the  defendants,  and  afterwards  account  stated,  without  reference  to  the 
carried  away  by  them.  At  the  time  of  memorandums,  wliich  were  not  admissi- 
the  bargain,  some  memorandums  in  writ-  ble  in  evidence  ;  but,  as  the  contract  had 
ing  had  been  made,  but  neither  stamped  been  executed  by  the  defendants,  they 
nor  signed.  The  defendants,  after  the  having  carried  away  the  poles,  the  Court 
poles  were  carried  away,  admitted  that  a  granted  the  plaintiff  a  new  trial,  on  pay- 
balance  was  due  to  the  plaintiff  Held,  ment  of  costs.  Teall  v.  Auty,  4  Moo.  542. 
a  nonsuit  was  rightly  ordered,  as  the  de- 


CHAP.   YII.]  STATUTE    OF   FRAUDS.  107 

9.  The  question  has  arisen,  whether  the  statute  aj)jtlies  to  the 
transfer  of  paper  securities,  relating  to  tlie  title  to  lands.  It  has 
been  held,  that  a  contract  for  the  sale  of  a  bond  secured  by  mort- 
gage of  lands  is  within  the  statute.^  So  a  parol  agreement  to 
execute  a  covenant  to  convey  is  within  the  statute,-  more  especially 
at  law.^  So  where  the  defendant  contracted  in  writing  to  sell  land 
at  a  certain  price,  and  the  plaintiff,  by  parol,  agreed  with  the 
purchaser  to  purchase  his  interest  in  the  contract,  and  the  latter, 
by  an  indorsement  on  the  contract,  ordered  the  veudor  to  convey 
to  the  plaintiff;  lield,  the  plaintiff  could  not  maintain  an  action 
against  the  defendant.^  But  an  agreement  to  locate  land  certifi- 
cates and  procure  patents,  in  consideration  of  a  good  title  to  half 
the  land,  is  not  within  the  statute.^ 

10.  The  statute  api)lies  to  a  parol  agreement  to  straighten  a 
crooked  line,  up  to  which  the  party  has  occupied  long  enough  to 
give  him  a  possessory  title. ^ 

11.  The  question,  whether  a  contract  is  within  the  statute,  has 
more  commonly  arisen  with  reference  to  the  liability  of  the  vendor ; 
but  sometimes,  in  connection  with  a  claim  for  the  price,  against 
the  vendee.  Upon  this  subject,  the  cases  seem  not  entirely  rec- 
oncilable, although  the  distinctions  turn  chiefly  upon  tlie  })oint, 
whether  the  purpose  of  a  suit  by  the  vendor  is  to  enforce  the 
execution  of  the  contract,  or,  after  it  has  been  executed  by  him, 
to  recover  the  stipulated  compensation. 

12.  It  is  held,  that,  in  order  to  recover  the  price  of  land  sold, 
there  must  be  a  contract,  subscribed  by  the  vendor,  and  assented 
to  or  accepted  by  the  purchaser.'  And  the  mode  of  payment  is 
held  immaterial.  Thus  a  contract  for  land,  to  be  paid  for,  one-half 
in  printing  and  one-half  in  cash,  is  within  the  statute,  where  there 
has  been  no  part-payment  or  possession  taken.^  So  no  action  lies, 
for  the  price  of  land  sold  by  parol  contract,  no  part  of  it  having 
been  paid,  nor  possession  taken,  though  a  deed  has  been  tendered 
by  the  seller,  but  not  accepted.^  So  the  plaintiff  verbally  sold  to 
the  defendant  his  interest  in  a  farm,  the  defendant  agreeing  to 

1  Toppin  V.  Lomas,  30  Eng.  Law  &  •>  Davis  v.  Townsend,  10  Barb.  333. 

Eq.  4'26.  7  Reynolds  v.  Dunkirk,  &c.  17  Barb. 

•^  Ledford  v.  Ferrell,  12  Ired.  285.  613. 

3  Yates  V.  Martin,  1  Chandl.  118.  **  Morgan  v.  McLaren,  4  Greene,  536. 

4  Sinims  v.  Killian,  12  Ired.  252.  9  Lester  v.  Bartlett,  2  Cart.  628. 

5  Watkins  v.  Gilkerson,  10  .Te.x.  340. 
See  Maxwell  v.  Wallace,  1  Busb.  Eq.  251. 


108  LAW   OF   VENDORS    AND    PURCHASERS.  [CHAP.    VII. 

"  step  into  liis  shoes,"  and  clear  him  of  certain  mortgage  notes,  and 
of  a  note  for  -$50,  made  to  the  mortgagee,  with  surety,  and  indorsed 
upon  the  mortgage  note  as  part-payment.  The  defendant  entered, 
and,  six  years  after  the  sale,  the  plaintiff  paid  half  the  -$50  note 
and  costs,  and  brings  this  action  therefor.  Held,  as  the  defendant 
was  not  legally  bound,  the  action  did  not  lie.^  So  a  purchaser 
of  land  under  incumbrance,  who  receives  a  conveyance  without 
covenants,  cannot  set  up  a  concurrent  parol  agreement  on 
the  part  of  the  grantor  to  pay  off  the  incumbrances ;  for  such 
agreement  is  parcel  of  an  entire  agreement  for  the  sale  of 
lands.2  So  where  A.  sold  land  to  B.,  and  gave  his  bond  to  make 
title,  on  B.'s  verbal  promise  to  pay  a  debt  which  A.  owed  to  C. ; 
held,  this  was  not  void  by  the  statute  as  a  promise  to  pay  the 
debt  of  a  third  person,  but  was  void  as  a  contract  for  the  sale  of 
real  estate.^  So  it  has  been  held,  that  a  note  or  memorandum  is 
insufficient,  unless  it  furnish  evidence  of  ])rice,  and  the  amount 
thereof,  this  being  an  essential  part  of  the  contract.*  Therefore  a 
letter  written  by  the  purchaser,  subsequent  to  a  sale  by  auction, 
and  addressed  to  the  vendor,  will  not  take  the  case  out  of  the  stat- 
ute, if  it  only  contain  a  statement  of  the  contract  for  the  purchase, 
but  exhibit  no  particular  of  the  price,  nor  refer  to  any  other  writ- 
ing which  does  so.  So  though  the  letter  refer  to  certain  notes, 
tendered  in  payment,  which  notes  are  not  before  the  Court,^ 

13.  But  the  Statute  of  Frauds  does  not,  in  general,  preclude  an 
action  for  the  price  of  land.^  Thus,  after  delivery  and  acceptance 
of  a  deed,  the  vendor  of  land  may  maintain  an  action  for  the  price 
by  the  acre  which  the  purchaser  verbally  agreed  to  pay."  So  an 
executor  sells  under  a  power.  In  a  suit  on  a  note  for  the  price, 
the  defence  was  made  that  there  was  no  writing.  The  vendee  had 
possession  nearly  seven  years,  and  paid  part  of  the  price,  and  re- 
newed notes  for  the  rest  with  security ;  and,  pending  the  suit,  a 
good  title  was  tendered.  The  answer  does  not  claim  rescission. 
Held,  no  defence.^  So  a  promise  by  the  purchaser  of  land,  at  the 
time  of  the  conveyance,  to  pay  the  taxes  that  are  or  may  be  as- 
sessed thereon,  for  the  current  year,  is  not  "  a  contract  for  the 
sale  of  lands,  &c.,  or  of  any  interest  in  or  concerning  the  same."  ^ 

1  Davis  V.  Farr,  26  Verm.  592.  «  Thayer    v.    Viles,    23    Verm.    494 ; 

2  Duncan  v.  Blair,  5  Denio,  196.  Holland  v.  Hoyt,  14  Mich.  238. 

3  Rice  V.  Carter,  11  Ired.  298.  '  Nutting  i'.  Dickinson,  8  AUen,  540. 

4  Ide  V.  Stanton,  15  Verm.  685.  «  Hill  v.  Spalding,  1  Duv.  216. 

5  Adams  v.  M'Millan,  7  Port.  73.  9  Brackett  v.  Evans,  1  Cush.  79. 


CHAP.    VII.]  STATUTE   OF   FRAUDS.  109 

So  where  A.,  who  had  mortgaged  land  to  B.,  sold  the  land  to  C, 
on  the  parol  agreement  that  C.  should  pay  the  mortgage  debt,  and 
that  B.  should  release  his  mortgage ;  held,  the  promise  of  C.  was 
not  within  the  statute.^  So  A.  promised  B.  to  pay  him  -$1,000  at 
his  death,  if  he  would  sell  his  estate,  and  purchase  his  own  farm  at 
a  stipulated  price,  and  come  and  reside  there.  B.  did  sell  his 
farm,  and  bought  A.'s  farm,  and  removed  there  with  his  family. 
Held,  the  promise  was  not  within  the  statute.^  So  A.  entered  on 
B.'s  land,  and,  without  his  knowledge  or  authority,  cleared  it, 
made  improvements,  erected  buildings,  &c.  B.  afterwards  agreed 
by  parol  with  A.  (against  whom  he  had  brought  an  ejectment  for 
possession),  that  he  would  sell  the  land  to  A.  as  wild  land,  or  pay 
him  for  the  improvements.  Held,  though  the  promise  to  sell  was 
void,  the  promise  to  pay  for  the  improvements  was  not  within  the 
statute,  though  void  for  want  of  consideration. ^  So  where  one  in 
possession  of  land,  on  which  he  had  made  improvements,  agreed 
to  transfer  it,  and  the  purchaser  verbally  promised  to  pay  for  the 
improvements  ;  held,  the  promise  was  not  within  the  statute."*  So 
the  plaintiff  conveyed  to  the  defendant  a  tract  of  land,  as  contain- 
ing 110  acres,  at  $S  per  acre ;  with  a  verbal  agreement  for  a  sur- 
vey, and,  if  there  proved  to  be  less  than  110  acres,  the  plaintiff 
should  refund  ;  if  more,  the  defendant  should  pay  at  the  same  rate 
for  the  surplus.  Held,  not  within  the  statute,  and  that  there  was 
a  sufficient  consideration  for  the  promise  of  the  defendant.^  So 
extrinsic  evidence  may  be  offered  of  the  price  paid,  where  the  in- 
strument or  memorandum  is  certain  and  unambiguous.^  So  a  let- 
ter, promising  to  make  a  deed  of  land  "  according  to  contract,"  is 
sufficient,  though  the  terms  are  not  mentioned,  if  the  party  claim- 
ing the  conveyance  can  prove  the  price  by  one  witness."  So  a 
receipt  for  the  purchase-money  may  constitute  a  sufficient  agree- 
ment, provided  it  show  on  its  face,  or  by  reference  to  some  other 
instrument,  every  material  part  of  a  valid  contract.^  So  a  receipt, 
acknowledging  payment  of  money  in  these  words :  "  In  part-pay- 
ment of  the  tract  of  land  that  1  was  interested  in,  and  sold  by  the 
sheriff,  and  purchased  by  Colonel  C.  L.  Goodwin,  and  which  land 
was  sold  by  C.   L.   Goodwin  to  Benj.  Hatcher  ;   this  is  in  part- 

1  Simonton  v.  Gandolfo,  2  Fla.  392.  «  Hatcher  v.  Hatcher,  1  McM.  Kq.  311, 

2  Kins  V.  Haiina,  9  B.  Mon.  369.  318. 

3  Frear  v.  llanlenbiirgh,  5  Johns.  272.  ^  Jolmson  v.  Ronald,  4  Munf.  77. 

4  Benedict  v.  Beebee,  11  Johns.  145.  «  Barickman  v.  Ivuykendall,  (3  Blackf. 

5  Garret  v.  Malone,  8  Rich.  335.  21. 


110  LAW  OP  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 

payment,  to  redeem  the  said  land  from  Benj.  Hatcher,"  was  held  a 
sufficient  memorandum  of  the  agreement.^  So  where  there  was  a 
parol  agreement,  that  one  party  should  hold  an  estate,  and  recon- 
vey  to  the  other  on  payment  of  the  purchase-money  and  interest ; 
held,  that  credits  and  charges  on  tlie  books  of  tlie  former  in  regard 
to  the  estate,  and  conformable  to  the  agreement,  were  sufficient  to 
take  the  case  out  of  the  statute.^  So  where  A.  sold  to  B.  land  and 
took  his  notes  in  part  -  payment ;  and,  in  consideration  of  the 
refusal  of  the  grantor's  wife  to  sign  the  deed,  it  was  verbally  agreed 
by  A.  that  only  two  of  the  notes  should  be  paid :  held,  this  agree- 
ment was  valid.'^  So  a  parol  contract  for  labor,  to  be  paid  for  by 
a  conveyance  of  whichever  of  two  town  lots  the  party  doing  the 
labor  shall  select,  is  not  within  the  Statute  of  Frauds.*  So  the 
plaintiff  and  defendant  enter  into  an  indenture,  in  which,  after  a 
recital  that  they  are  "  in  possession  and  improvement,  and  are 
principal  owners  of  a  certain  water-privilege,  with  the  buildings 
thereon,  machinery,  fixtures,  &c.,"  the  plaintiff  agrees  to  convey, 
and  the  defendant  to  receive  and  pay  for,  "  all  the  plaintiff's  right, 
&c.,  of  the  above-described  premises,  consisting  of,  &c.  ;  also  the 
saw-mill,  with  every  privilege,  <fec.,"  at  such  prices  as  shall  be 
awarded  by  three  men,  to  be  chosen,  &c.,  and  for  the  fulfilment  of 
the  agreement  they  bind  themselves,  each  to  the  other,  under  the 
penalty  of  11,000,  &c.  A  price  having  been  fixed  by  such  referees, 
held,  the  defendant  could  not  object,  that,  by  the  Statute  of  Frauds, 
the  indenture  was  invalid,  because  the  referees  and  the  price  were 
not  ascertained  by  the  indenture  itself.^  So  a  contract  for  the 
sale  of  lands,  signed  and  sealed  by  the  vendor  only,  and  delivered 
to  and  accepted  by  the  vendees,  purported  to  contain,  on  the  part 
of  the  latter,  a  covenant  to  pay  the  consideration  money ;  and  was 
recognized  and  ratified,  on  the  part  of  the  vendees,  by  an  indorse- 
ment under  their  hands  and  seals.  Held,  a  sufficient  signing  ;  and 
the  indorsement  not  containing  in  itself,  or  amounting,  when  taken 
in  connection  with  the  original  contract,  to  a  covenant  to  pay,  and 
the  vendor  having  tendered  a  conveyance  ;  held,  he  might  main- 
tain indebitatus  assumpsit  for  the  consideration.  But,  if  the  indorse- 
ment had  amounted  to  a  covenant  to  pay,  the  action  must  have 
been  covenant  or  debt.^ 

1  Hatcher  v.  Hatcher,  1  McM.  Eq.  311.  <  Lingle  v.  Clemens,  17  Ind.  134. 

2  Tufts  *;.  Tufts,  3  W.  &  M.  456.  5  Brown  v.  Bellows,  4  Pick.  179. 

3  Friermood  v.  Pierce,  17  Ind.  461.  ''  Gale  v.  Nixon,  6  Cow.  445. 


CHAP,    YII.]  STATUTE    OF   FRAUDS.  Ill 

14.  The  question  has  often  been  raised,  whether  a  strict  and 
literal  compliance  with  the  requirements  of  the  Statute  of  Frauds 
is  necessary  to  the  validity  of  a  contract  relating  to  the  sale  of 
lands.  Upon  this  subject,  it  is  lield,  as  the  prevailing  doctrine, 
that  a  liberal  construction  is  to  be  given  to  the  statute  ;  and,  where 
an  agreement  has  been  reduced  to  a  certainty,  and  the  substance 
of  the  statute  complied  with  in  the  material  ])art,  the  forms  have 
never  been  insisted  upon.^(«)  Thus  it  is  sufficient,  if  the  name  is 
so  inserted  in  any  part  of  the  instrument,  wliether  the  top,  middle, 
or  bottom,  as  to  authenticate  it,  and  is  ap])licable  to  the  whole  sub- 
stance of  the  writing,  and  put  there  by  the  party  or  his  autlior- 
ity.2(6)  As  where  an  agreement  begins,  "  I,  A.  B."  tliough  not 
signed.^  So  J.  R.  Bridges,  having  five  freehold  houses,  but  no 
other  property,  in  Cable  Street,  Liverpool,  agreed  to  sell  them  to 
J.  Bleakley  for  .£248  ;  and  thereupon  drew  up  the  following  mem- 
orandum :  "  July  2Gth,  1839.  John  Bleakley  agrees  witli  J.  R. 
Bridges  to  take  the  property  in  Cable  Street  for  the  net  sum  of 
X248  10s.;"  held,  the  agreement  was  sufficiently  signed  by  the 
vendor.*  So  if  a  person,  who  is  a  party  to,  and  knows  the  contents 
of,  an  agreement,  subscribes  it  as  a  witness  only,  this  has  l)een  licld 
a  signing  within  the  statute.^  And  a  written  admission  of  a  previous 
parol  contract  is  sufficient.^  So  it  is  held,  that  a  memorandum  of 
the  sale  will  be  sufficient,  if  signed  b?/  the  party  to  be  charged,  more 
especially  when  followed  by  a  direction  to  the  attorney  to  prepare 
a  writing  for  both  parties  to  sign  ;  and  if  it  contain  the  essential 
terms  of  the  contract,  expressed  with  such  clearness  and  certainty, 
that  they  may  be  understood  from  the  writing,  or  some  other 
paper  to  which  it  refers,  without  resorting  to  parol  proof."     So 

•   1  Welford  u.  Beazely,  3  Atk.  503.  C.  117;   Ide  v.   Stanton,  15  Verm.  685; 

2  Ogilvie  V.  Foljanibe,  3  Meri.  53;  Smith  r.  Arnold,  5  Mass.  414 ;  Adams  i\ 
Anderson  r.  Harold,  10  Ohio,  o'JU;  Hig-  M'Millan,  7  Tort.  73;  I'ackliurst  v.  Van 
don  I'.  Thomas,  1  Harr.  &  G.  130.  Cortlandt,  1  Johns.  Cli.  274  ;  (Jetclicll  v. 

3  Knight  V.  Crockford,  1  Esp.  Ca.  189.  Jewett,  4  Greenl.  350;  Shirley  r.  Shirley, 

4  Bleakley  v.  Smith,  11  Sim.  150.  7  Blaekf.  452;  Thornton  v.  Kempster,  5 

5  Welford  f.  Beazely,  3  Atk.  503.  Taun.    788;    Russell  r.   Nixon,  3   Wend. 

6  Ide  ?;.  Stanton,  15  Verm.  (J85.  112;    Barstow   v.   Gray,  3    Greenl.   40'J ; 
■J  Ivory  V.  Murphy,  36  Mis.  534  ;  Wor-     M'Crea  v.  Purmort,  10  Wend.  4G0  ;  Cla- 

rall  V.  Munn,  1  Seld.  229 ;  Fowle  v.  Free-    son  v.  Bailey,  14  Johns.  487. 
man,  9  Ves.  351 ;  Goora  v.  Afflalo,  6  B.  & 

(a)  The  statute  does  not  require  that  [h)  In  New  York,  jirintiiifj  the  vendor's 

the  particular  land  contracted  to  be  sold  name  at  the  foot  of  the  contract  is  not  suf- 

shall  he  described  ;  it  is  sufficient  that  the  ficient.     Vielie   v.    Osgood,  8  Rarb.   130. 

contract  provides  for  its  selection  out  of  There  must  be  an  actual  manual  suhscrip- 

the   lands   of  the  vendor.     Carpenter  v.  tion  at  the  end  of  the  contract.     Iliid.     A 

Lockhart,  1  Smith,  326.  newspaper  advertisement  otltTcd  land  of 


112  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 

the  signing  of  a  deed  of  the  land  sold.  Thus  B.  sold  W.  a  tract  of 
land,  for  a  sum  of  money,  payable  one-half  in  six  months  and  the 
remainder  in  twelve,  and  a  deed  was  prepared  and  executed  at 
the  same  time  by  B.,  but  remained  in  his  possession.  W.  paid 
part  of  the  purchase-money,  but  afterwards  failed,  and,  upon  B.'s 
offering  him  a  deed,  conveying  the  land,  and  demanding  a  compli- 
ance with  the  contract  on  his  part,  W.  declined,  on  the  ground  of 
inability,  to  pay  the  sum  due.  B.  then  declared  the  contract  to  be 
at  an  end,  and  went  on  to  improve  the  lands  in  his  possession,  at 
the  same  time  refusing  to  give  up  that  portion  of  the  purchase- 
money  received.  Upon  an  action  for  specific  performance,  held, 
the  deed  took  the  case  out  of  the  statute. ^  So  a  deed  defectively 
executed  is  evidence  of  a  parol  agreement  to  convey  land.^  So, 
where  parties  agree  to  exchange  lands,  a  deed  executed  by  one  of 
them,  though  not  delivered,  is  a  sufficient  memorandum  to  bind 
him; 3(a)  or  a  bond,  reciting  the  names  of  the  parties  to,  and  the 
terms  of,  a  contract  for  the  sale  of  land,  and  conditioned  to  secure 
a  performance  of  such  contract,  prepared  and  written  by  the  vendee 
and  obligee,  and  executed  by  an  agent  of  the  vendor,  and  delivered 
by  him  to  the  vendee.'^  So  a  written  notice,  signed,  referring  to  a 
written  proposal,  not  signed,  and  made  several  years  before,  may 
be  so  connected  with  it  as  to  render  the  two  documents  a  binding 
contract.^  So  decrees  may  be  founded  upon  letters,  not  intended 
at  the  time  to  be  a  complete,  final  agreement.^  So  it  is  held,  that 
the  writing  need  not  state  the  consideration  of  the  contract.'^ 

14  a,  Where  a  contract  in  writing,  or  note,  exists,  which  binds 
one  party,  any  subsequent  note  in  writing,  signed  by  the  other, 
binds  him,  provided  it  either  contains  in  itself  the  terms,  or  refers 
to  any  writing  which  contains  them.^  Thus  the  pvirchaser  of  lands 
at  auction  signed  a  memorandum  of  the  contract,  indorsed  on  the 

1  Bowles  V.  Woodson,  6  Gratt.  78.  ^  Lowry  v.  Dufferin,  Ir.  Eq.  287. 

■^  Somerville  v.   Trueman,  4  Harr.  &         *>  Fowle  v.  Freeman,  9  Ves.  851. 

M'Hen.  252.  ^  Ivory  v.  Murphy,  36  Mis.  534. 

3  Pan-ill  V.  M'Kinley,  9  Gratt.  1.  »  Dobell  v.  Hutchinson,  3  Ad.  &  Ell. 

i  Higdon  V.  Thomas,  1  Harr.  &  G.  130.  855. 

the  advertiser  for  sale  at  auction,  upon  the  (a)  Contract  for  the  sale  of  land.    The 

terms  therein  stated  ;  one  of  whicli  was,  deeds  were  drawn,  the  vendor  took  them 

that  one-third  of  the  price  should  be  paid  home,  and  wrote  to  the  vendee  that  they 

down.     The  sale  took  place,  but  no  fur-  wore  ready,  and  requested  her  to  attend 

ther  writing  was  made,  nor  the   money  and  settle  the  business,  but  he  died  before 

paid.    Held,  insufficient  to  pass  an  interest  the  parties  met.     Held,  not  a    sufficient 

in  the  land,  and  that  no  action  would  lie  agreement  in  writing.     Givens  v.  Calder, 

for   the  price.     Kurtz  v.  Cummings,  24  2  Desaus.  171. 
I'enn.  35. 


CHAP.    VII.]  STATUTE    OF   FRAUDS.  113 

particulars  and  conditions  of  sale,  and  referring  to  them.  After- 
wards he  wrote  to  the  vendor,  complaining  of  a  defect  in  the  title, 
referring  to  tlie  contract  expressly,  and  renouncing  it.  The  vendor 
wrote  and  signed  several  letters,  mentioning  the  property  sold,  the 
names  of  the  parties,  and  some  of  the  conditions  of  sale,  insisting 
on  one  of  them  as  curing  the  defect,  and  demanding  the  execution 
of  the  contract.  Held,  these  letters,  as  connected  with  the  partic- 
ulars and  conditions,  constituted  a  memorandum  in  writing,  bind- 
ing upon  the  vendor  under  the  statute  (§  4),  although  neither  tlie 
original  conditions  and  particulars,  nor  the  memorandum  signed 
by  the  purchaser,  mentioned  or  were  signed  by  the  vendor.^  So 
where  a  letter  signed  by  the  vendor  is  combined  with  his  proposal, 
by  a  note  in  the  third  person,  specifying  the  price,  the  contract  is 
binding.^  So  where  the  defendant  purchased  leasehold  premises 
at  auction,  and  signed  a  memorandum  of  the  purchase,  on  the  back 
of  a  paper,  containing  the  particulars  of  the  premises,  the  name  of 
the  owner,  and  the  conditions  of  sale ;  held,  the  defendant  was 
bound,  though  no  contract  was  signed  by  the  vendor.^  So  if  a 
party  has  entered  into  a  parol  agreement  for  a  lease,  and  a  draft 
of  it  is  prepared ;  though  the  agreement  is  void  under  the  statute, 
yet  an  indorsement  by  him,  referring  to  the  case  on  the  draft 
admitting  the  agreement,  is  sufficient  to  bind  him.'*  So  where  the 
reversioner  in  fee  of  a  liouse,  expectant  upon  a  term,  a  portion  of 
which  has  been  underlet,  agrees  by  one  letter  to  grant  the  sub- 
lessee an  extension  of  the  lease,  at  a  certain  yearly  rent,  and  in 
another  letter  fixes  the  time  when  the  term  is  to  expire ;  this  is  a 
valid  agreement,  and  the  sub-lessee  has  a  right  to  a  lease,  which 
shall  commence  from  the  expiration  of  the  existing  term.^  So  in 
assumpsit  for  the  price  of  a  pew  in  the  Bulfinch-street  Church, 
Boston,  sold,  as  the  plaintiff  alleged,  by  her  to  the  defendant,  the 
defendant,  among  other  grounds  of  defence,  relied  upon  the  Statute 
of  Frauds.  The  pew  was  sold  at  auction,  and  in  the  record  of  sales 
kept  by  the  auctioneer  was  this  entry :  "  Sale  of  pew  in  Bulfinch- 
street  Church,  for  ace.  Selinda  Fessenden.  Monday,  March  24, 1845. 
Pew  No.  18.     Benj.  Mussey,  1112.50.     Charges,  advertising,  and 

1  Dobell  V.  Hutchinson,  3  Ad.  &  Ell.  3  Laythourp  v.  Bryant,  2  Bing.  N.C. 
355.  735. 

2  Western  v.  Russell,  3  Ves.  &  Bea.  *  Shii)i)ey  v.  Derrison,  5  Esp.  Ca.  190. 
187.                                             .  5  Verlander  o.   Codd,  Turn.  &  Russ. 

352. 
8 


114  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  VII. 

commission,  $5."^  Thomas,  J.,  says:  "  If  this  memorandum  was 
made  at  the  time  and  place  of  sale,  by  the  auctioneer,  or  his  clerk 
then  acting  under  his  direction,  we  think  it  is  sufficient.^  It  desig- 
nates clearly  what  was  sold,  by  whom,  to  whom,  the  time  when, 
and  the  price.  The  middle  name  of  the  purchaser  is  omitted,  but 
it  was  competent  to  show  by  parol  that  defendant  was  intended,  or 
that  defendant  was  well  known  by  the  name,  or  that  he  subse- 
quently recognized  the  signature.  As  to  terms  of  payment,  the 
presumption  of  law,  in  the  absence  of  an  express  stipulation,  is,  that 
it  was  for  cash,  payable  on  a  tender  of  a  deed."  So  a  sale  at  auc- 
tion of  real  estate  was  evidenced  by  an  advertisement,  containing 
time,  description,  &c.  ;  by  a  plot  used  at  the  auction,  upon  which 
the  clerk  noted  the  name  of  the  purchaser,  the  price,  the  surety, 
&c.,  only  writing  the  word  "  ditto  "  under  the  purchaser's  name 
in  the  cases  of  other  lots  purchased  by  him ;  and  by  a  letter  of  the 
purchaser  concerning  the  purchase.  Held,  that  this  was  admissible 
evidence  under  the  Statute  of  Frauds,  and  the  clerk  might  give 
parol  testimony  to  explain  and  connect  the  various  parts.^  So  in 
making  sales  of  real  estate  under  orders  of  sale  in  partition,  the 
sheriff  is  the  agent  of  both  parties.  Any  appropriate  entry  or 
memorandum,  made  by  the  sheriff  in  his  sale-book,  should  be  taken 
in  connection  with  the  papers  in  the  partition  case,  and  they  should 
be  regarded  as  a  part  thereof,  when  the  sufficiency  of  the  memo- 
randum is  called  in  question.^  So  a  memorandum  made  by  a 
deputy  sheriff,  and  signed  by  him,  of  a  sale  of  one  of  several  lots 
in  a  partition  proceeding,  in  which  Louis  Robert  and  others  were 
plaintiffs,  and  one  B.  T.  Adams,  defendant,  was  as  follows:  "  Par- 
tition, lands  —  Louis  Robert  v.  B.  T.  Adams  —  lot  No.  11  —  274. 
80-100  a.  — Louis  Robert,  110.50  per  a. —12,885.40."  Held, 
sufficient.^ 

15.  But  the  note  or  memorandum  must  state  expressly,  or  by 
reference,  the  subject  of  sale,  the  terms  and  the  parties,  with  such 
certainty  as  to  furnish  evidence  of  a  complete  agreement.  Thus, 
where  the  subject  of  sale  was  described  as  "  B.'s  right  in  C.'s 
estate,"  this  was  held  sufficiently  certain.  But  where  the  memo- 
randum was  a  book,  on  the  cover  of  which  was  written,  "  A.'s 


1  Fessenden  v.  Mussey,  11  Cush.  127.  ^  Lee  v.  Malioney,  9  Iowa,  344. 

-  Gill  V.  Bicknell,  2  Cush.  355  ;  Morton  ^  Stewart  v.  Garvin,  31  I\lis.  86. 

V.  Dean,  13  Met.  385.  ^  Wiley  v.  Robert,  31  Mis.  212. 


CHAP,    VII.]  STATUTE    OP    FRAUDS.  115 

memorandum  of  B/s  property  received  by  assignment,"  and,  on  a 
leaf  of  the  book,  under  the  caption,  "  Sales  at  auction,  6th  March, 
1826,"  was  this  entry :  "  B.'s  right  in  C.'s  estate,  sold  to  D.,  860 ; " 
in  an  action  brought  by  A.,  tlie  auctioneer,  against  D.,  for  the 
purcliase-money ;  it  was  held,  that  the  memorandum  was  fatally 
defective,  because  it  did  not  show,  with  the  requisite  certainty,  that 
A.  was  the  vendor.^  Nor  can  an  imperfect  memorandum  of  a  sale 
by  an  auctioneer,  and  a  letter  addressed  by  the  vendee  to  the  ven- 
dor, be  so  united,  as  to  take  such  sale  out  of  tlic  statute  ;  there 
being  no  direct  reference  in  the  one  to  the  other,  so  as,  in  effect, 
to  render  them  one,  witliout  the  aid  of  parol  proof.^  Nor  can  an 
agreement  be  partly  in  writing  and  partly  in  parol,  though  it  may 
be  shown  by  parol  evidence  that  separate  papers  ]>oth  related  to, 
and  formed  parts  of,  one  contract.^  So  a  paper  signed  by  a  party, 
and  proposing  to  convey  all  the  property,  cannot  be  connected  by 
parol  with  another  paper  not  signed,  for  the  purpose  of  designating 
the  property  meant  to  be  conveyed.'*  So  a  letter  to  a  solicitor,  with 
directions  for  preparing  the  conveyance  of  land  purchased,  described 
generally  as  the  land  bought  of  [a  person  named] ,  but  not  specify- 
ing the  terms,  is  not  sufficient  evidence  of  a  contract  within  the 
statute,  and  the  estate  will  not  pass  by  a  will  made  previous  to 
the  conveyance.^  So  a  newspaper  advertisement  offered  land  of 
the  advertiser  for  sale  at  auction,  upon  the  terms  therein  stated; 
one  of  which  was,  that  one-third  of  the  price  should  be  paid  down. 
The  sale  took  place,  but  no  further  writing  was  made,  nor  the 
money  paid.  Held,  insufficient  to  pass  an  interest  in  the  land,  and 
that  no  action  would  lie  for  the  price. •" 

16.  With  more  particular  reference  to  the  point,  what  shall  con- 
stitute a  signing  under  the  Statute  of  Frauds ;  there  is  a  class  of 
cases  which  give  the  statute  a  strict  interpretation,  and  require  a 
somewhat  exact  conformity  to  its  provisions. (a)  Thus  where  one 
altered  a  draft  with  his  own  hand,  for  the  purchasing  an  estate ; 
held,  not  a  sufficient  signing,  though  the  seller  afterwards  executed 
the  conveyance,  and  caused  it  to  be  registered.'^     So  the  writing  of 

1  Nichols  V.  Johnson,  10    Conn.   192;  *  Ibid. 

Smith  V.  Arnold,  .5  Mas.  414.  ^  Kose  v.  Cunyni,dianie,  11  Yes.- 50. 

■^  Adams  v.  M'Millan,  7  Port.  73.  "^  Kurtz  v.  Cumminjrs,  24  Penn.  3.5. 

3  Moale  V.  Buchanan,  II  Gill  &  J.  314.  "*  Hawkins  v.  Holmes,  1  P.  Wnis.  770. 

[ii]  The  refusal,  by  a  vendor,  to  sign  a  so  as  to  take  the  case  out  of  tlie  statute, 
memorandum  in  writing  is  not  a  fraud,     Bozza  v.  Kome,  30  111.  198. 


116  LAW  OF  VEKDORS  AND  PURCHASERS.     [CHAP.  VII. 

a  party's  name  by  himself,  in  the  body  of  a  memorandum  of  agree- 
ment for  a  lease,  is  held  not  a  signature} 

17.  So  it  is  held,  that  an  entry,  to  be  valid,  must  contain  a  memo- 
randum of  the  contract,  and  state  distinctly  the  article  sold,  the 
price,  and  the  purchaser's  name.  Thus  the  following  memorandum, 
found  in  the  books  of  one  deceased  :  "  1841,  W.  P.  to  H.  C.  0.,  Dr. 
To  four  loads  of  rock,  one  lot,  at  one  year's  credit,  1125  ; "  is 
too  vague  and  uncertain  to  sustain  a  bill  for  specific  performance 
of  a  contract  for  the  purchase  of  land,  against  the  administrator.^ 
So  an  entry  in  these  words,  "  The  tract  of  land  to  Wm.  Meadows, 
at  $5.48."  ^  So  where  Oliver  and  Pipkin  bought  of  James  some 
groceries,  an  ice-house  and  lot ;  and  a  memorandum  of  the  sale 
was  headed,  "  Invoice  of  articles  purchased  by  Pipkin  and  Oliver 
of  James,  29th  August,  1836  ;  "  and  one  of  the  items  of  sale  was 
stated  thus  :  "  One  ice-house  and  lot,  -1140  ;  "  held,  that  the  con- 
tract as  to  the  ice-house  and  lot  was  void  for  uncertainty.*  So  the 
bare  entry  of  a  steward,  in  his  lord's  contract  book  with  his  tenants, 
is  not  an  evidence  of  itself,  that  there  is  an  agreement  for  a  lease 
between  the  lord  and  a  tenant.^(a) 

18.  It  has  been  questioned  whether  a  receipt,  not  containing  the 
terms  of  the  agreement,  nor  referring  to  any  other  paper  contain- 
ing it,  can  have  effect  as  an  agreement,  within  the  Statute  of 
Frauds.''  So  a  particular,  in  writing,  for  the  purchase  of  an  estate, 
is  not  sufficient  within  the  statute,  unless  the  party  purchased  l3y  it, 
or  it  was  shown  him  at  the  time  of  purchase.  Hence,  if  it  contain 
more  than  the  words  of  the  conveyance  will  in  strictness  carry,  the 
purchaser  cannot  compel  a  specific  execution  of  the  residue,  on  the 

1  Stokes  V.  Moore,  1  Cox,  219.  *  Pipkin  v.  James,  1  Humph.  825. 

"  Plummer    v.   Owens,    1    Busb.   Eq.  5  Charlevvood  v.  The  Duke  of  Bedford, 

254.  1  Atk.  497. 

3  Meadows  v.  Meadows,  3  M'C.  458.  ^  Coles  v.  Trecothick,  9  Ves.  234. 

[a]  Lease  of  lands  by  auction.  A  writ-  lands  to  be  let  for  three  lives,  or  thirty -one 
ing  deUvered  by  the  auctioneer  to  the  years.  Proposals  having  been  made  by 
highest  bidder,  and  containing  a  descrip-  B.  and  accepted,  an  agreement  was  exe- 
tion  of  the  lands,  the  term  for  which  they  cuted  between  B.  and  the  agent  of  A., 
were  let,  and  the  rent,  but  not  signed  by  duly  authorized,  in  which  the  term  was 
the  auctioneer  or  any  of  the  parties,  was  not  mentioned.  Held,  A.  was  not  bound, 
held  not  to  be  such  a  minute  of  the  agree-  Also,  there  being  no  reference  in  the  agree- 
ment as  was  required  to  be  stamped,  pur-  ment  to  the  advertisement,  that  parol  evi- 
suant  to  Stat.  48  Geo.  III.  ch.  149,  nor  such  deuce  could  not  be  received,  to  connect 
a  writing  as  would  exclude  parol  evidence,  the  one  with  the  other,  so  as  to  ascertain 
Eamsbottom  v.  Tunbridge,  2  Mau.  &  Selw.  the  term.  Chnan  v.  Cooke,  1  Sell.  &  Lef. 
434.  22. 

A.,  by  public   advertisement,  offered 


CHAP.    Vll.]  STATUTE    OF   FRAUDS.  117 

particular.^  So  to  a  bill  for  specific  performance  of  an  agreement 
for  the  sale  of  lands  and  chattels,  there  was  a  plea  of  the  Statute 
of  Frauds.  The  defendant,  during  the  negotiation,  delivered  a 
particular  of  the  whole,  signed  by  him.  The  agreement  was  after- 
wards made  at  a  less  price.  Both  parties  gave  instructions  to  an 
attorney  to  prepare  the  conveyance  ;  and  the  defendant  delivered 
to  him  the  particular,  as  instructions  for  the  deed,  which  was  pre- 
pared.    Held,  not  sufficient  under  the  statute.^ 

18  a.  A  recital  in  a  deed,  that  the  grantor  had  previously  con- 
veyed a  larger  tract  (including  that  granted  by  the  deed)  to  his 
sons,  by  "articles  of  agreement  dated  April  1, 1849,"  is  not  such  a 
memorandum  in  writing  of  the  agreement,  as,  in  an  action  of 
ejectment  for  the  land,  between  the  grantor  and  alleged  parol  ven- 
dees of  the  sons,  will  take  the  case  out  of  the  statute."'^  So,  the 
defendant  having  proposed  to  take  a  lease  for  seven  years,  a  draft 
was  prepared,  to  which  he  objected,  but  ultimately  took  it  away,  to 
be  settled  by  his  solicitors.  They  returned  the  draft  to  the  plain- 
tiff's solicitors,  with  the  following  letter :  "  We  have  seen  our 
client,  and  have  altered  the  draft  lease  in  accordance  with  his 
instructions.  We  trust  there  will  be  no  impediment,  to  prevent 
an  early  completion,  and  shall  be  glad  to  receive  the  draft  as  soon 
as  you  can,  that  we  may  engross  the  counterpart."  The  plaintiff's 
solicitors  replied,  returning  the  draft  and-  engrossment  of  lease, 
and  counterpart,  stating  that,  according  to  the  practice,  where 
there  is  no  stipulation  on  the  subject,  the  lessor's  solicitor  invaria- 
bly prepares  both  lease  and  counterpart.  Held,  there  was  no 
evidence  of  any  contract  binding  the  defendant  to  take  the  lease, 
and  no  memorandum  of  any  contract  sufficient  for  that  purpose 
within  the  4th  section  of  the  Statute  of  Frauds.'^ 

19.  Where  a  letter  contains  the  entire  terms  of  an  agreement,  it 
is  not  necessary  for  the  plaintiff  to  prove  that  he  accepted  the 
terms.  If  it  require  the  plaintiff  to  supply  a  term,  there  must  be 
a  special  acceptance  in  writing,  supplying  that  term,  in  order  to 
take  the  case  out  of  the  statute.^ 

20.  With  regard  to  the  mode  of  relying  upon  the  Statute  of 
Frauds,  as  a  defence  to  a  suit  upon  a  parol  contract  relating  to 
lands  ;  or  the  rules  of  pleading  connected  with  such  defence  ;  it  is 

1  Cass  V.  "VVaterhouse,  Free.  Clia.  29.  *  Forster  v.  Kowland,  7  Hurl.  &  Nor. 

2  Cooke  V.  Tombs,  2  Anst.  430.  103. 

3  Allen  V.  Allen,  45  Penn.  4G8.  5  Boys  v.  Ayerst,  6  Madd.  31G. 


118  LAW    OF   VENDOES   AND    PURCHASERS.  [CHAP.    VII. 

held,  ill  general,  that  a  parol  contract  for  the  sale  of  lands  is 
only  voidable}  Hence,  although  in  a  suit  for  specific  perform- 
ance of  such  agreement,  if  the  defendant,  in  his  answer,  admit 
the  agreement,  he  may  still  set  up  the  statute  as  a  defence  ;  ^ 
yet  if  the  defendant  in  his  answer  admits  the  contract,  without 
insisting  on  the  statute,  the  court  will  decree  a  specific  per- 
formance.^ 

21.  The  statute  need  not  be  pleaded  ;  more  especially  where  the 
answer  denies  the  agreement.'*  So,  if  a  defendant  denies  any 
agreement,  the  complainant  must  prove  a  valid  one,  except  in  case 
of  part-perfo7'mance.^  So  if  a  bill  be  brought  for  specific  perform- 
ance of  a  parol  contract  for  the  conveyance  of  land ;  although  the 
defendant  does  not  rely  upon  the  plea  of  the  statute,  yet,  if  he 
denies  the  contract  as  stated  in  the  bill,  and  insists  that  the  real 
contract  was  a  different  one ;  the  court  will  not  receive  parol  evi- 
dence in  support  of  the  plaintiff's  claim. *5  But  the  bill  having 
charged,  that  the  defendant  had  written  letters  to  the  attorney  who 
was  to  prepare  the  conveyance,  in  which  the  agreement  was  admit- 
ted ;  he  must  answer  to  that  fact.'' 

22.  Where  a  bill  seeks  specific  performance  of  a  contract,  which 
appears  from  the  bill  itself  to  be  within  the  statute,  this  is  ground 
of  demurrer.^  So,  when  fraud  is  charged  in  the  bill,  it  need  not 
be  answered,  if  the  bill,  admitting  the  fraud,  presents  no  ground 
for  relief.  Hence,  a  bill  to  enforce  a  parol  sale  of  land,  charging 
the  defendant  with  fraudulently  refusing  to  reduce  the  agreement 
to  writing,  though  it  was  part  of  the  contract  that  it  should  be  so 
reduced,  may  be  demurred  to,  without  an  answer  to  the  charge  of 
fraud. 9 

23.  Bill  for  specific  performance  of  a  parol  agreement  respecting 
lands.  The  defendant  pleaded  the  Statute  of  Frauds,  and  also 
answered.  In  his  answer  he  admitted  the  parol  agreement,  as 
stated  in  the  bill ;  and  that  he  had  taken  possession  of  and  held 


1  Gillespie  v.  Battle,  15  Ala.  276.     See  v.  Rowton,  1   Hen.  &  M.  92 ;  Givens  v. 
Mahana  v.  Blunt,  20  Iowa,  142.  Calder,  2  Desaus.  171. 

2  Brandeis  v.  Neustadtl,  13  Wis.  142 ;  5  Jervis  v.   Smith,  1   Hoffm.  Ch.  470 ; 
Thompson  v.  Tod,  1  Pet.  C.  C.  388.  Reynolds  v.  Dunkirk,  &c.,  17  Barb.  613  ; 

3  HoUingshead  v.  McKenzie,    8   Geo.  Hall  v.  Hall,  1  Gill,  888. 

457  ;  Newton  ;;.  Swazey,  8  N.H.  9  ;  Jervis  ^  Allen  v.  Cliambers,  4  Ired.  125. 

V.  Smith,  1  Hoflm.  Ch.  470.  7  Cooke  r.  Tombs,  2  Anstr.  420. 

4  Hocker  v.  Gentry,  3  Met.  (Ky.),  463  ;  ^  Chambers  v.  Lecompte,  9  Mis.  566. 
Poag  V.   Sandifer,  5  Rich.  Eq.  170.     See         9  Box  v  Stanford,  13  Sm.  &  M.  93. 
Tufts  V.  Tufts,  3  W.  &  M.  456  ;  Rowton 


CHAP.    VII.]  STATUTE    OF    FRAUDS.  119 

the  land  under  the  agreement.     Held,  the  answer  took  the  case 
out  of  the  statute.^ 

24.  Bill  for  specific  performance  of  a  verbal  agreement  relating 
to  the  purchase  of  land.  The  defendant  relied  on  the  Statute  of 
Frauds,  and  also  denied  any  such  agreement.  Upon  this  denial 
he  was  indicted  for  perjury.  Held,  the  denial  of  an  agreement  not 
binding  on  the  parties  was  immaterial  and  irrelevant,  and  the 
defendant  was  entitled  to  his  acquittal.^ 

25.  A  parol  contract  for  lands,  alleged  to  have  been  made  by 
the  ancestor,  will  not  bo  specifically  enforced  against  infant  heirs, 
although  their  guardians  do  not  insist  upon  the  statute.^ 

1  Smith  V.  Brailsford,  1  Desaus.  350.  3  Grant  v.  Craigmiles,  1  Bibb.  203. 

2  Bex  V.  Dunston,  By.  &  Mood.  109. 


120  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    VIII. 


CHAPTER    VIII. 


PAROL    LICENSE. 

1.  Part- performance  and  license.  8.    A  license  creates  a /lersona^  right;  by 

2.  Nature  of  a  license.  whom,  and  at  what  time,  it  is  to  be  executed; 

3.  Implied  license.  who  are  bound  by  it. 

4.  Distinction  between  a  Uctnse  and  a  11.  Whether  and  how  far  a  license  is 
lease  or  an  easement.  revocable. 

1.  In  the  next  chapter,  we  shall  have  occasion  to  consider  the 
effect,  upon  a  verbal  contract  for  the  sale  and  purchase  of  lands, 
of  a  part-performance  of  such  contract,  as  operating  to  take  it  out 
of  the  Statute  of  Frauds.  Somewhat  analogous  to  this  part  of  the 
general  subject  is  a  verbal  licerise  to  enter  upon  land,  for  particular 
specified  purposes,  not  constituting  or  accompanied  by  a  transfer 
of  title  to  the  land  itself.  Inasmuch  as  a  license  derives  much  of 
its  legal  effect  and  validity  from  the  execution  of  it,  the  two  topics 
referred  to  may  naturally  be  considered  in  immediate  connection 
with  each  other. 

2.  A  license,  as  has  been  already  remarked,  does  not  pass  an 
estate,  but  merely  confers  a  certain  r/^7i^  or  pj-ivileffe,  to  be  used 
upon  the  land  of  another.  It  is  a  mere  authority  to  enter  upon 
the  land  of  another,  and  do  an  act,  or  series  of  acts,  without 
having  any  interest  in  the  land ;  founded  in  personal  confidence, 
not  assignable,  and  valid,  though  not  in  writing.^  Thus  the  grant 
of  a  license  to  flow  passes  no  property,  but  is  a  mere  remitter  of 
damages.^  So  a  license  will  not  sustain  an  action  of  trespass  qu. 
el.^  So  a  plea  of  license  does  not  raise  the  question  of  title.'*  So 
a  license  not  only  does  not  create  any  title  to  the  land,  but  also 
disproves  any  claim  arising  from  adverse  possession.^  Thus  a 
parol  agreement  for  liberty  to  stack  coals  upon  land,  for  seven 

1  Selden   v.   Delaware,   &c.,   29  N.Y.  See    Smith    v.    Simons,    1    Eoot,    318; 
(2  Titfa.),  634;  Mmnford  v.  Whitney,  15  Woodward  v.  Seeley,  11  III.  1-57. 
Wend.    380 ;    Folsom  v.  Moore,  1  Appl.  3    Houghtailing     v.     Houglitailing,     5 
252 ;    Taylor  v.   Waters,   7   Taunt.  374 ;  Barb.  379 ;  Den  v.  Baldwin,  1  Zabr.  390. 
Liggins  V.  Inge,  5  Moo.  &  P.  712 ;  Hazel-         *  Wheeler  v.  Eowell,  7  N.H.  515. 

ton  V.  Putnam,  3  Chand.  117.  5  Luce  v.  Cooley,  24  Wend.  451. 

2  Clinton  v.  M'Kenzie,  5  Strobh.  36. 


CHAP.    VIII.]  PAROL    LICENSE.  121 

years,  has  been  held  valid. ^  So  a  parol  license  to  build  and  main- 
tain a  bridge  on  another's  land  is  valid,^  or  to  enlarge  a  canal,-^ 
or  the  grant  of  a  mere  right  to  float  logs  on  a  stream.'*  So  ])arol 
authority  may  be  given  to  a  grantor  to  enter  upon  the  land  and 
remove  property,  being  a  mere  license.^  So  a  parol  license  is 
valid,  to  enter  on  land,  and  lay  down  aqueduct  logs  for  the  pur- 
pose of  conveying  water  from  a  spring  to  adjoining  land,  with 
liberty  to  enter  from  time  to  time  for  examination  and  repairs.'^ 
So  in  an  action  for  building  and  continuing  a  railroad  on  a  street 
in  front  of  the  plaintiff's  house,  so  as  to  obstruct  his  right  of  in- 
gress and  egress ;  the  company  may  set  up  a  parol  license  from 
the  plaintiff  to  build  the  road,  as  a  bar  to  all  damages  sustained 
while  the  license  remained  unrevoked."  So  where  the  owner 
of  wild  laud  agreed  with  another  person  to  go  and  clear  a  part  of 
it,  fence,  and  help  the  latter  to  build  a  house,  reserving  to  the 
former  the  use  of  the  timber,  except  what  was  needed  for  "  house, 
rails,  and  firewood ; "  held,  a  mere  license  to  occupy  the  land, 
giving  no  right  to  dispose  of  any  timber  cut  in  clearing  it.^  So  in 
case  of  a  license  from  the  lord  of  a  manor  to  erect  a  cottage,  ren- 
dering an  annual  rent  of  lO.s*.  Qd.  as  a  quit-rent ;  also  to  inclose  a 
piece  of  ground  for  a  garden  to  the  cottage ;  both  being  parts  of 
the  waste :  the  licensee  having  built  a  cottage,  and  resided  in  it  a 
year  and  a  half;  held,  not  to  confer  a  settlement,  not  being  a  grant 
of  any  interest  in  land.^  So  where  a  tenant  for  life  agreed  to  sell, 
and  gave  possession  ;  held,  though  the  contract  could  not  operate  as 
a  sale,  it  did  operate  as  a  license  to  enter  and  occupy  until  revoked.^*^ 
So  in  a  suit  for  overflowing  land,  the  defendant  may  set  up  an 
agreement,  whereby  the  plaintiffs,  in  consideration  of  the  erection 
of  the  dam  in  question,  and  certain  mills  thereon,  agreed  that  they 
would  waive  and  release  all  damages  that  might  ensue  from  the  erec- 
tion of  such  dam,  and  that,  on  their  faith  in  such  agreement,  they 
had  erected  the  dam,  incurred  large  expenses,  &c.^^  So  an  agree- 
ment, to  take  a  certain  annual  compensation  for  damages  occasioned 
by  flowing,  is  not  an  agreement  for  the  sale  of  an  interest  in  lands. ^^ 

1  Wood  V.  Lake,  Say.  3.  T  Miller  v.  Auburn,  &c.,  G  Hill,  6. 

2  Ameriscoggin,   &c.  v.  Bragg,  UN.  »  Caller  r.  Hilty,  2  Ilarr.  (reiin.),  286. 
II.  102.  9  Kox   V.   Iiiliabitants   of  Horntlon,  4 

3  Selden   v.   Delaware,   &c.,   29  N.Y.  Mau.  &  Selw.  502. 

(2Tiflfa.),  G34.  w  Van    Deusen   v.    Young,  29    N.Y. 

4  Rhodes  V.  Otis,  33  Ala.  578.  (2  'J'ifiii.),  9. 

■^  Parsons  v.  Camp,  11  Conn.  25.  n  Stepliens  v.  Benson,  19  Ind.  367. 

6  Sampson  v.  Burnside,  13  N.H.  264.  12  Short  v.  Woodward,  13  Gray,  86. 


122  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    VIII. 

So  a  son,  having  agreed  to  purchase  a  piece  of  land  for  £65,  applied 
to  his  father,  who  consented  to  advance  <£20  left  to  his  wife,  on 
condition  that  a  house  should  ho  built  by  the  son  on  the  land, 
which  the  father  and  mother  were  to  have  for  their  lives,  and  the 
life  of  the  survivor,  and  which  was  afterwards  to  go  to  the  son, 
but  the  father  and  mother  were  not  to  sell  or  dispose  of  it,  nor  to 
take  any  other  family  into  the  house.  This  agreement  was  only 
by  parol.  Afterwards  the  father  advanced  the  £20,  the  son  com- 
pleted the  purchase,  the  land  was  conveyed  to  him  in  fee,  and  he 
built  a  house,  of  which  the  father  and  mother  took  possession, 
with  his  consent,  and  lived  in  it  for  three  years,  without  paying 
any  rent,  when  the  father  died,  and  the  mother  continued  in  pos- 
session. Held,  the  father  did  not  gain  a  settlement  by  the  resi- 
dence on  tlie  land,  nor  was  the  mother  entitled  to  reside  on  it 
irremovably.^ 

3.  A  license,  or  a  right  equivalent  to  that  created  by  a  license, 
may,  under  some  circumstances,  be  implied  from  the  necessities 
of  individuals  and  from  the  usages  of  the  community .^  Thus  it  is 
held  that  the  right  to  fioiv^  in  order  to  raise  water  sufficient  to 
carry  a  mill,  subject  to  the  claim  for  damages,  is  given,  by  neces- 
sary implication,  in  the  statute  regulating  mills,  and  therefore 
needs  not  to  be  proved  by  writing,  under  the  Statute  of  rrauds.'^(a) 
So  there  is  an  implied  license  to  enter  a  shop  for  the  purpose  of 
making  a  purchase,  or  the  house  of  a  friend,  to  pay  a  visit.*  So 
the  construction  of  a  wharf,  or  dock,  on  the  margin  of  a  navigable 
stream,  is  an  implied  license  to  all  persons  engaged  in  the  naviga- 
tion of  its  waters,  to  use  the  wharf,  when  otherwise  unoccupied, 
for  the  purpose  of  mooring  or  making  fast  their  vessels ;  and, 
when  once  acted  on,  this  license  cannot  be  recalled  without  giving 
the  owner  of  the  vessel  sufficient  time  to  provide  for  her  safety  in 
some  other  manner.  Held,  therefore,  that  one  by  whom  a  vessel 
was  cut  loose  from  her  fastenings,  and  suffered  to  drift  down  the 
stream,  was  answerable  for  the  whole  amount  of  injury  thus  occa- 
sioned ;  and  could  not  justify  by  showing  that  the  title  to  the 
wharf  was  vested  in  himself,  and  that  the  vessel  had  been  moored 

1  Eex   V.   Inhabitants   of   Standon,   2         3  Clement  v.  Durgin,  5  Greenl.  9. 
Mau.  &  Selw.  4G1.  4  Adams  v.  Freeman,  12  John.  486. 

2  10  Cush.  219. 

(a)  So  the  damages  occasioned  by  sucli  flowing  may  be  waived  or  relinquished 
by  parol. 


CHAP. 


VIII.] 


PAROL    LICENSE. 


123 


there  without  his  knowledge  or  consent.^  So  building  a  i)hink 
wall  near  the  boundary  line  of  land,  which  the  plaintiff  was  en- 
titled to  have  left  open  with  a  view  to  the  enjoyment  of  light  and 
air,  Avas  held  a  waiver  of  that  right,  and  debarred  him  from  object- 
ing to  the  building  erected  by  the  defendant,  although  so  placed 
as  to  obstruct  the  view  from  a  window  subsequently  opened  in  the 
wall.-(«)  But  where,  by  an  indenture  between  tlic  town  of  Boston 
and  a  mill-dam  corporation,  tlie  latter  granted  to  the  former  a 
certain  proportion  of  a  tract  of  land  covered  with  water,  "■  except- 
ing the  mill-creek,  and  such  other  canals  as  may  be  agreed  to  be 
kept  open  for  the  passage  of  boats  ;  "  and  by  a  subsequent  inden- 
ture between  the  same  parties  it  was  agreed  that  the  town  might 
put  a  covering  over  part  of  the  creek  or  canal,  "  provided  only, 
that  no  interruption  or  impediment  shall  be  made  or  permitted 
below  said  covering  to  boats  on  passing  through  or  into  said 
canal ; "  held,  these  provisions  did  not  constitute  a  license  to  the 
abutters  to  navigate  the  creek.^  So,  also,  the  creek  being  kept 
open  for  boats,  held,  although  there  was  an  implied  public  license 

1  Heeny  z'.  Heeny,  2  Denio,  625. 

2  Moore  v.  Rawson,  3  B.  &  C.  332.     See  Liggins  v.  Inge,  7  Bingh.  G82. 

3  Baker  v.  Boston,  12  Pick.  184. 


(a)  The  case  of  Lakin  v.  Ames,  10  Cush. 
190,  was  an  action  of  trespass  for  tearing 
down  a  horse-shed ;  and  one  of  the  de- 
fences was,  tliat  the.  shed  was  so  erected 
in  front  of  a  tomb,  lawfully  on  a  burying- 
ground,  as  to  obstruct  the  entrance  there- 
to, and  that  the  defendant,  having  the 
legal  right  to  open  the  tomb,  and  deposit 
a  corpse  therein,  peaceably  removed  the 
shed  for  that  purpose,  doing  no  unneces- 
sary damage.  The  facts  of  the  case,  and 
the  judgment  of  the  Court  thereupon, 
suflBciently  appear  from  the  following 
remarks  of  Bigelow,  J.  (p.  219):  "The 
vote  by  which  Jonas  S.  Varnimi  and 
others  had  liberty  to  build  two  or  more 
tombs  in  the  graveyard,  under  the  direc- 
tion of  the  selectmen,  and  the  erection  of 
said  tombs,  in  pursuance  of  such  direc- 
tions, operated  as  a  valid  grant  by  vote, 
to  erect  and  use  a  tomb  by  said  Varnum, 
with  a  right  of  access  thereto,  as  the 
same  was  then  constructed  and  subse- 
quently used.  Damon  v.  Granby,  2  Pick. 
345,  351.  It  would  be  absurd  and  con- 
trary to  all  rules  of  construction,  to  hold 
that  this  was  a  grant  of  a  mere  right  to 
build  a  tomb,  without  the  necessary  right 
appurtenant  thereto,  of  access  to  it  over 
the  common,  and  of  entering  it  in  the 
mode  provided  under  the  authority  and 


direction  of  the  agents  of  the  town. 
There  can  be  no  doubt,  therefore,  of  the 
right  of  the  mother  of  the  defendant,  or 
of  any  person  acting  under  a  license  or 
authority  from  her,  to  enter  the  tomb  for 
the  purpose  of  placing  there  the  body  of 
her  deceased  son,  to  remove  all  obstruc- 
tions which  would  prevent  or  hinder  the 
right  of  sepultui'e  from  being  there  per- 
formed in  a  decent  and  becoming  maimer. 
The  learned  coimsel  for  the  plaintiff  have 
put  this  case  mainly  upon  the  want  of 
authority  on  the  part  of  the  defendants  to 
act  in  the  mother's  behalf  But  the  law 
will  imply  a  license  from  the  necessities 
of  individuals  and  from  the  usages  of  the 
community.  Thus  it  has  been  held,  that 
the  entry  upon  another's  close,  or  into 
his  liouse,  at  usual  and  reasonable  hours, 
and  in  a  customary  maimer,  for  any  of 
the  common  purjtoses  of  life,  cannot  be 
regarded  as  a  trespass.  It  cannot  be 
that  it  is  necessary  to  produce  formal 
proof  of  authority  from  a  mother  to  a  son 
to  do  all  that  was  necessary  and  ])roj)er 
for  the  burial  of  lier  deceased  son  in  the 
family  tomb.  The  law  will  imply  a 
license  from  the  nature  and  exigencies  of 
the  case,  the  relation  of  the  parties,  and 
the  well-established  usages  of  a  civilized 
and  Christian  community." 


124  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.   VIII. 

to  navigate  it,  this  was  not  such  a  perpetual  license  as  could  be 
pleaded  as  a  grant,  or  a  dedication  to  the  public ;  and  that  no 
individual  could  acquire  a  prescriptive  right,  by  the  use  of  it  while 
thus  open.i  So  though  the  defendants,  who  were  in  the  mining 
business,  permitted  the  plaintiffs,  in  the  same  business,  to  operate 
through  their  gangway ;  it  was  held,  that  this  permission  would 
not  justify  the  defendants  in  wilfully  filling  up  the  plaintiffs'  shaft 
with  water.2 

4.  It  is  obvious,  from  the  general  nature  of  the  title  above 
referred  to,  as  well  as  from  the  cases  cited  to  illustrate  it,  that, 
although  purporting  to  involve  no  interest  in  tlie  land,  and  there- 
fore not  falling  within  the  provisions  of  the  Statute  of  Frauds ;  it 
is  still  a  species  of  ownership,  and,  if  extended  to  the  length  which 
the  principle  of  it  would  seem  legitimately  to  allow,  might  well  go 
far  to  defeat  the  purposes  of  that  statute.  Hence  the  following 
distinction  has  been  adopted,  and  seems  to  be  as  well  established 
as  the  general  rule  itself:  — 

5.  A  license  is  a  mere  authority  to  do  a  particular  act,  or  series 
of  acts,  upon  another's  land,  as,  e.g.  to  hunt,  or  cut  a  certain  num- 
ber of  trees.  Such  licenses  merely  excuse  acts  which  would 
otherwise  be  trespasses.  But  a  license,  which  grants  an  estate, 
however  short,  is  a  lease,  and  requires  a  deed.  So  a  permanent 
right  to  hold  another's  land  for  a  particular  purpose,  and  enter  at 
all  times  without  his  consent,  is  an  easement,  and  requires  an 
agreement  in  writing.^  Thus  the  right  to  erect  a  mill  on  the  land 
of  another.^  So  a  parol  contract  between  A.  and  B.,  that  A.  shall 
erect  a  steam  saw-mill  on  B.'s  land  and  manage  it  at  his  own  cost, 
and  that  B.  shall  deliver  at  the  mill,  at  his  cost,  certain  timber 
from  his  land,  and  that  the  profits  of  the  sawing  shall  be  equally 
divided  between  them,  is  void  under  the  Statute  of  Frauds.^  So  it 
is  held,  that  although  an  easement,  arising  either  from  grant  or 
prescription,  may  be  extinguished,  renounced,  or  modified  by  a 
parol  license  from  the  owner  of  tlie  dominant  tenement,  executed 
by  the  owner  of  the  servient  teneme.\t;  yet,  as  an  easement  cannot 
be  created  but  by  deed  or  prescription,  a  parol  license,  which 

1  Ibid.  V.    Whitney,    15    Wend.    380;     Seiden- 

2  McKniglit  V.  RatclifF,  44  Penn.  156.  sparger  v.  Spear,  17  Maine,  123  ;  Stevens 

3  Selden    v.  Delaware,    &c.,  29   N.Y.  v.   Stevens,   11  Met.   251;    3  Kent,  452; 
(2  Tilth. ),  G34  ;  Cooli  v.  Stearns,  11  Mass.  Claflin  v.  Carpenter,  4  Met.  583. 

537  ;    Folsom    v.   Moore,    1    Appl.    252  ;  •*  Trammell  v.  Tramniell,  11  Eich.  471. 

Prince  v.  Case,  10  Conn.  375;  Mumford         5  Joues  v.  McMicliael,  12  Rich.  176. 


CHAP. 


VIII.] 


PAROL    LICENSE. 


125 


would  create  an  easement,  if  given  by  deed,  may  be  revoked,  even 
after  execution.^ (a)     So  an  agreement  that  a  party  may  abut  and 

1  Morse  v.  Coiioland,  2  Gray,  302. 


(rt)  "  Generally,  if  not  always,  a  license 
whicli,  when  executed,  extininiislies  or 
modifies  an  easement,  is,  from  llie  nature 
of  the  case,  a  license  to  do  acts  on  the 
servient  tenement,  the  tenement  of  the 
licensee."  Per  IMetcalf,  J.  Morse  v. 
Copeland,  2  Gray,  305. 

Coals,  and  the  right  to  dig  them,  are  an 
interest  in  lands.  Lear  v.  Chouteau,  23 
111.  3y. 

Dower  before  assignment  is  an  "in- 
terest in  lands  "  within  the  Statute  of 
Frauds.  Finch  v.  Finch,  10  Ohio  (n.s.), 
501. 

A  promise,  that  in  consideration  that 
the  plaintiff  would  erect  certain  buildings 
upon  tiie  land  he  should  have  it,  is  void 
within  the  Statute  of  Frauds.  Smith  v. 
Smith,  4  Dutch.  208. 

The  owner  of  a  mill  privilege,  under 
whom  tlie  plaintiffs  claimed,  gave  the 
owner  of  lands  flowed  therebj-,  imder 
whom  the  defendants  claimed,  an  oral 
license  to  erect  a  dam  on  his  land,  and 
also  to  dig  a  ditch  across  the  land  of  the 
licensor  to  drain  the  water  from  part  of 
the  licensee's  land ;  which  was  aecord- 
ingh'  done.  Held,  the  license  to  dig  the 
ditch  might  be  revoked,  even  after  twenty 
years,  but  not  the  license  to  build  the 
dam  ;  and,  the  licensor  having  assumed 
to  revoke  the  whole  license,  and,  after 
notice,  made  an  incision  in  the  dam,  the 
licensee  was  justified  in  making  a  ditch 
on  his  own  land,  to  draw  off  the  water 
thus  thrown  upon  it,  though  he  thereby 
diverted  the  water  from  the  licensor's 
mill-pond.  Morse  v.  Copeland,  2  Gray, 
302. 

It  has  been  recently  helil  in  New 
York,  that  a  parol  license  to  divert  water 
from  a  watercourse,  so  as  to  prevent  it 
from  passing  over  another's  land,  is  valid. 
Rathbone  v.  M'Connell,  20  Barb.  311. 
Strong,  J.,  thus  refers  to  the  course  of 
decisions  upon  this  sulyect :  "  In  Pierre- 
pont  V.  Barnard,  2  Seld.  270,  it  was  held, 
that  a  parol  license  by  the  owner  of  land 
to  cut  and  carry  away  standing  timber, 
fully  executed  before  revocation,  was  a 
complete  protection  for  what  was  done 
under  it.  The  principle  of  that  case  is 
directly  in  point.  The  trees  were  as 
much  a  part  of  the  freehold  as  the  right 
to  the  use  of  the  water.  Green  v.  Arm- 
strong, 1  Denio,  550.  The  diversion  of 
the  latter  might  be  justified  under  a 
license,   as    well   as   the   cutting    of   the 


former.  Liggins  ?•.  Inge,  (7  Bingham, 
082;  20  Eng.  Com.  L.  Hep.  287.)  also 
goes  directly  in  suj)port  of  the  validit}'  of 
the  license.  It  was  an  action  on  the  case 
for  wrongfully  continuing  the  diversiun  of 
water  from  the  plaintiti's  mill,  and  the 
facts  and  question  to  l)e  decided,  as  briefly 
stated  in  the  opinion  of  Tindall,  (-..I., 
were  these :  '  It  appeared  in  evidence 
before  the  arbitrator,  that  the  bank  of 
the  river  which  had  been  cut  down 
was  the  soil  of  the  defendants,  and  that 
the  same  had  been  cut  down  and  low- 
ered, and  the  weir  erected,  and  the 
water  thereby  diverted  by  them,  the  de- 
fendants, and  at  their  expense,  in  the 
year  1822,  under  a  parol  license  to  them 
given  for  that  purpose  by  the  plaintiff's 
father,  the  then  owner  of  the  null,  and 
that,  in  the  year  1827,  the  plaintiti's  father 
represented  to  the  defendants  that  the 
lowering  and  cutting  down  the  banks 
was  injurious  to  him  in  the  enjoj'inent  Of 
his  mill,  and  had  called  upon  tliem  to 
restore  the  land  to  its  former  state  and 
condition  ;  with  which  requisition  the  de- 
fendants had  refused  to  comply.  The 
question  therefore  is,  whether  such  non- 
compliance, and  the  kee])ing  of  the  weir 
in  the  same  state  after,  and  notwithstand- 
ing the  countermand  of  tlie  license,  is 
such  a  wrong  done  on  the  jiart  of  the 
defendants  as  to  make  them  liable  in  this 
action.  The  operation  and  effect  of  the 
license,  after  it  has  been  completely  exe- 
cuted by  the  defendants  is  sufficient,  with- 
out holding  it  to  convey  an}'  interest  in 
the  water,  to  relieve  them  from  the  bur- 
den of  restoring  to  its  former  state  what 
has  been  done  under  the  license,  although 
such  license  is  countermanded,  and  con- 
sequently they  are  not  liable  as  wrong- 
doers for  persisting  in  such  refusal.'  The 
views  of  the  Court  are  given  by  the  Chief 
Justice  at  considerable  length,  and  it  is 
also  held  that  the  license,  after  it  was 
executed,  was  notcountermandable.  Tiiat 
was  much  fnrther  than  it  is  necessary  to 
go  in  this  case.  That  case  is  referred  to 
with  approbation  in  Smith  t\  The  Bir- 
mingham and  Stafibrdshire  Gas-Light  Co. 
(1  Adol.  &  El.  52(;),  and  in  Wood  w.  Man- 
ley  (11  Adol.  &  Ell.  34). 

"  The  case  of  Otis  v.  Ilall  (3  Johns. 
450)  decides  that  such  a  license  is  valid, 
and  also  that  setting  it  up  does  not  raise 
a  question  of  title.  The  action  was  a 
special  action  on  the  case,  for  overflowing 


126 


LAW    OF   VENDOES   AND    PURCHASERS.  [CHAP.    VIII. 


erect  a  dam  upon  the  lands  of  another,  and  maintain  it  so  long  as 
there  shall  be  employment  for  the  water-power,  is  void ;  for  the 
power,  being  not  a  mere  license,  but  a  transfer  of  an  interest  in 
lands,  in  order  to  be  valid,  must  be  in  writing.^(a)    So  the  attorney 

1  Mumford  f.  Whitney,  15  Wend.  380. 


the  pUiintitTs  land,  by  means  of  a  mill- 
dam  erected  by  the  defendant  on  his  own 
land.  The  defendant  proved  that  he  had 
permission  to  erect  the  dam,  and  over- 
flow the  plaintitf's  land  if  necessary  for 
the  use  of  the  mill.  On  a  motion  by  the 
plaintifl'  for  full  costs,  on  the  ground  that 
the  title  to  lands  came  in  question,  the 
Court,  after  stating  the  question,  and 
expressing  the  opinion  that  the  freehold 
or  title  did  not  come  in  question,  say  : 
'  The  case  bears  no  analogy  to  that  of 
Heaton  v.  Ferris  (1  Johns.  146).  There 
was  no  claim  of  a  right  of  entry  into  tlie 
plaintifl's  land,  nor  of  any  direct  use  or 
enjoyment  of  it.  The  defendant  merely 
sets  up  a  right  to  use  his  own  land  in  the 
manner  he  has  done,  by  erecting  the 
dam ;  that  any  consequential  injury  to 
the  plaintiff  was  waived  by  his  express 
license  for  that  purpose.  The  statute 
only  apphes  to  cases  where  a  claim  or 
question  to  the  direct  use  by  entry  on 
another's  land  comes  in  controversy. 
This  and  many  other  cases  of  consequen- 
tial injuries,  as  for  nuisances  erected  on 
the  defendant's  own  land,  do  not  in  any 
manner  bring  the  title  in  question.  Nor 
does  the  setting  up  a  lease  or  license  by 
tiie  plaintiff  raise  a  question  as  to  the 
title,  or  give  any  right  or  interest  in  the 
plaintiff's  land.'  If  a  license  to  flow  land 
with  water  is  valid,  it  would  seem  that  a 
license  justifying  the  alleged  wrongful 
diversion  of  water  from  it  must  be,  at 
least,  until  revoked.  The  case  of  Chand- 
ler V.  Duane  (10  Wend.  563)  was  a 
motion  for  costs  to  the  defendants,  and 
similar  to  that  last  cited.  Sutherland,  J., 
says,  '  The  action  and  the  ground  of 
defence,  and  all  tlie  circumstances  in  the 
case,  were  precisely  the  same  as  in  this,' 
and  the  same  principle  was  applied.  (See 
also  Clinton  v.  M'Kenzie,  5  Strobhart, 
36.) 

"  The  case  of  Powell  v.  Rust  (8  Barb. 
567)  is  entirely  milike  the  present.  The 
decision  in  that  case,  that  a  claim  of  title 
arose  on  the  pleadings,  was  placed  on  the 
ground  that  Kust  claimed,  by  virtue  of  an 
agreement  with  the  plaintifl',  the  property 
in,  and  the  right  to  enter  with  teams  and 
take  away,  certahi  growing  trees  and 
shrubs,  which  were  part  of  the  land. 
Here,  no  transfer  to  the  defendant  of  a 


right  to  the  use  of  the  water  is  asserted, 
but  only  a  permission  to  do  an  act  by 
which  the  diversion  of  the  water  was 
effected.  If  the  license  may  not  be  re- 
voked, it  is  not  because  it  conferred  any 
interest  in  the  use  of  the  water  upon  the 
defendant,  but  because  it  operated  as  a 
yielding  up  and  relinquishment  of  the 
water  diverted.  (Liggins  v.  Inge,  above 
cited.)  Mumford  v.  Whitney  (15  Wend. 
380)  is  the  case  of  a  claim  by  the  defend- 
ant to  a  permanent  interest  in  the  plain- 
tiff's land.  Davis  v.  Townsend  (10  Barb. 
333)  contains  only  the  same  doctrine. 
For  the  foregoing  reasons,  I  am  of  opinion 
that  no  claim  of  title  to  real  property 
arises  on  the  pleadings  in  this  case." 

See  Stancel  v.  Calvert,  1  Wins.  K.C. 
No.  1,  104. 

(a)  In  a  late  case  in  Maine,  it  has  been 
held,  that  a  parol  license  tliat  the  plaintiff 
or  his  grantor  may  build  a  dam  on  the  land 
of  another,  to  raise  a  reservoir  for  the  use 
of  his  mill,  gives  the  plaintifl'  no  right  to 
maintain  the  dam,  or  control  the  water 
raised  by  it.  Pitman  v.  Foot,  38  Maine, 
237.  Tenney,  J.,  says  (p.  24 1;  :  "Tlie 
Court,  in  Munford  v.  Whitney,  15  Wend. 
380,  review  many  of  the  cases  upon  this 
subject,  in  which  the  doctrine  of  some  is  in 
conflict  with  that  of  others ;  and  it  is  said 
by  Savage,  C.J.,  who  delivered  the  opinion 
of  the  Court,  '  I  shall  not  undertake  to 
reconcile  these  various  cases.  It  is  evi- 
dent the  subject  has  been  understood  very 
differently  by  different  Judges.  But  in 
this  all  agree,  that,  according  to  the  Stat- 
ute of  Frauds,  any  permanent  interest  in 
the  land  itself  cannot  be  transferred, 
except  by  writing.  Much  of  the  dis- 
crepancy may  have  arisen  from  the  dif- 
ferent ideas  attached  to  the  word  license. 
If  we  understand  it  as  Chancellor  Kent 
defines  it,  it  seems  to  me,  there  can  be  no 
difficulty.'  '  If  A.  agrees  with  B.  that  B. 
may  build  a  dam  upon  the  land  of  A., — 
if  it  is  to  be  permanent,  —  such  an  agree- 
ment is  not  technically  a  license.  The 
object  of  A.  is  to  grant,  and  of  B.  to 
acquire,  an  interest  which  shall  be  per- 
manent ;  a  right  not  to  occupy  for  a  short 
time,  but  as  long  as  thei'e  shall  be  employ- 
ment lor  the  water-power  to  be  created. 
Can  such  an  interest,  such  a  right,  be 
thus  created  ^     The  answer  to  this  ques- 


CHAP.    VIII.]  PAROL    LICENSE.  127 

of  a  lessor  wrote  to  the  lessee,  "  Mr.  [the  lessor]  has  no  objection 
to  your  leaving  the  fixtures  on  the  premises,  and  making  the  best 
terms  with  the  incoming  tenant."  Held,  if  such  letter  gave  any 
license,  it  was  one  coupled  with  an  interest  in  land,  and  required 
a  sealed  instrument ;  and  did  not  therefore  give  tlie  lessee  a  right 
of  action  against  the  incoming  tenant,  for  refusing  either  to  inir- 
chase  the  fixtures  or  allow  the  lessee  to  enter  and  remove  them.^ 
So  the  defendant  gave  a  parol  license  to  the  plaintiff  to  construct 
a  drain  through  the  defendant's  yard,  and  use  it  as  a  means  of 
escape  for  foul  and  waste  water  from  the  defendant's  premises. 
After  the  license  had  been  acted  upon  and  executed,  and  the  drain 
constructed,  he  revoked  the  license  and  stopped  up  the  drain. 
Held,  he  was  not  liable  to  an  action  for  so  doing,  the  right  claimed 
by  the  plaintiff  being  an  easement,  which  lay  in  grant,  and  could 
not  be  created  by  parol.^  So  a  sealed  instrument  of  the  following- 
tenor  :  "  I  hereby  authorize  E,.  to  open,  and  continue  open,  a  road 
through  my  field,  beginning  at,  &c.,  as  also  to  build,  keep  in 
repair,  and  use  a  bridge  over  the  branch  in  the  field  on  which  the 
said  road  will  pass,  said  road  and  bridge  being  intended  as  well 
for  the  public  use  as  the  use  of  R. ;  and  to  continue  until  R.  and 
myself  shall  agree  it  shall  be  shut  up  or  altered  ;  "  is  a  grant  of 
an  incorporeal  hereditament,  a  right  of  way  de  novo,  wliich  will 
endure  until  botli  parties  agree  upon  its  discontinuance,  and  must 
be  legally  acknowledged  and  recorded.^ 

6.  The  same  distinction  has  been  applied  to  public  or  legislative 
grants.  Thus  the  proprietor  of  a  wharf  in  a  harbor  was  authorized 
by  statute  to  extend  it  into  the  channel  to  the  line  of  the  harbor. 
Before  any  such   extension,  a  company  was   incorporated,  with 

I  Ruffey  V.  Henderson,  8  Eng.  Law  &         ^  Hewlins  v.  Shippam,  5  B.  &  C.  22L 
Eq.  305.  3  Hays  v.  Ricliardson,  1  Gill  &  J.  366. 

tion  is  given  in  the  language  of  Mr.  &c.,  23  Conn.  214.  The  decision  pro- 
Sugden,  It  appears  to  be  in  the  very  ceeds  upon  the  ground,  that,  if  such 
teeth  of  the  statute.' "  license  is  in  reality  the  grant  of  an  ease- 
Action  for  diverting  upon  land  of  the  niont  or  incorporeal  hereditament,  it  is 
plaintifl'  the  water  of  a  canal,  located  on  void  under  the  Statute  of  Frauds ;  and,  if 
liis  adjoining  land  by  means  of  a  culvert  a  mere  authority,  was  revocable  by  the 
built  by  the  defendants,  a  railroad  cor-  plaintitf's  grantor  during  his  ownership, 
poration,  on  the  land  last  named.  Held  and,  if  it  did  not  terminate  by  the  trans- 
no  defence,  that  the  grantor  of  the  plain-  fer  to  the  plaintiff,  was  revocable  by  the 
tiff  consented  by  parol  to  the  building  of  latter.  It  was  further  held,  that  the 
the  culvert  and  the  consequent  diversion  defendants  could  not  set  up  a  charter, 
of  the  water,  verbally  requested  and  emjiowering  them,  by  taking  certain 
assisted  the  defendants  to  build  the  cul-  steps,  to  acquire  the  right  of  so  diverting 
vert,  and  agreed  to  save  them  harmless  the  water  of  the  canal ;  such  steps  not 
from  all  damage.     Foot  v.  New  Haven,  having  been  actually  taken. 


128  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    YIII. 

authority  to  locate  and  construct  a  railroad  across  and  over  the 
flats  between  the  wharf  and  the  line  of  the  harbor.  Held,  the 
former  act  was  a  grant^  not  a  mere  license,  revocable,  and  revoked 
by  the  latter.^  So  a  legislative  repealable  grant  to  a  corporation, 
of  the  right  to  lay  gas-pipes  in  the  highways,  is  not  a  mere  revo- 
cable license,  but  an  easement.^  So  a  license  to  ivork  mines  gives 
a  right  to  commit  waste,  and  carry  off  a  part  of  the  realty,  and 
therefore  requires  a  writing.  It  is  an  incorporeal  hereditament, 
which  cannot  exist  but  by  deed  or  prescription.^ 

7.  A  license  is  also  to  be  distinguished  from  a  lease,  as  well  as 
an  easement,  which  latter  is  the  chief  point  of  distinction  in  the 
cases  already  cited.  Thus  A.,  under  a  license  from  B.,  the  owner 
of  land  through  which  flowed  a  watercourse,  erected  a  mill  thereon, 
and  ever  afterward  held  and  occupied  such  mill  as  owner  ;  but  it 
did  not  appear  that  there  was  any  consideration  for  the  license,  or 
that  it  was  to  continue  for  any  certain  time,  or  that  there  was  any 
agreement  as  to  the  nature  of  the  occupation,  or  any  mutual  stip- 
ulations. A.  brings  an  action  against  C,  the  owner  of  a  mill 
below,  for  setting  back  the  water  upon  his  mill,  by  means  of  a  dam 
erected  by  C.  Held,  the  license  did  not  constitute  a  lease,  nor 
create  any  privity  of  contract,  between  A.  and  B.^  So  an  unsealed 
lease,  providing  as  follows,  —  "  All  the  hedges,  trees,  thorn-bushes, 
fences,  with  lop  and  top,  are  reserved  to  the  landlord,"  —  may 
be  shown  under  a  plea  of  leave  and  license,  in  an  action  by  the 
tenant  against  the  landlord,  for  entering  the  close,  and  drawing 
the  trees,  when  cut,  over  it.^  And  an  executory  contract  of  pur- 
chase, with  leave  to  the  vendee  to  enter  and  occupy  till  default  in 
payment,  without  any  fixed  period  or  compensation,  is  a  license  ; 
not  a  lease,  easement,  or  permanent  interest  in  land.  Nor  does  it 
create  the  relation  of  landlord  and  tenant.  Nor  is  the  purchaser 
a  wrong-doer  till  default  or  demand  of  possession.^  So  a  deed, 
invalid  as  a  conveyance  for  want  of  a  witness,  may  be  good  as  a 
license.'' 

8.  It  has  already  been  stated,  that  a  license  is  a  personal  au- 
thority. Hence  the  privilege  which  it  creates  is  not  transmissible 
by  the  act  of  the  party  or  of  law,  by  assignment,  descent,  or  devise, 

1  Fitchburg,  &c.  v.  Boston,  &c.,  3  5  Hewitt  v.  Isham,  7  Eng.  Law  &  Eq. 
Cush.  58.  595. 

2  Providence,  &c.  v.  Thurber,  2  R.I.  15.         ^  Dolittle  v.  Eddy,  7  Barb.  74. 

3  Desloge  v.  Pearce,  38  Mis.  588.  "^  Sullivant  v.  Franklin,  &c.,  3  Ohio,  89. 
*  Brancli  v.  Doane,  17  Conn.  402. 


CHAP.    VIII.]  PAROL    LICENSE.  129 

like  a  legal  estate,  but  is  restricted  to  tlie  original  party  himself.(r/) 
Thus  an  agreement  was  made  for  sale  of  land,  the  purchaser  not 
to  cut  or  allow  to  be  cut  any  timber,  without  written  consent  of 
the  vendor.  The  defendant,  claiming  under  tlic  vendee,  cut  tim- 
ber ;  and  the  vendor  brings  trover  against  him.  Held,  the  defend- 
ant coukl  not  set  up  in  defence  a  parol  license  to  cut  from  the 
plaintiff  to  the  purchaser.^  So  a  license  (under  seal)  to  build  a 
mill  and  dam,  at  any  point  in  the  course  of  a  stream  which  tlie 
grantee  should  think  proper,  can  be  executed  only  by  the  i)arty  to 
whom  it  was  given ;  and,  if  not  executed  in  his  lifetime,  confers 
no  authority  or  interest  upon  his  heirs,  or  those  claiming  under 
him.^  So  in  trespass  against  a  commoner,  for  pulling  down  a 
house  built  on  the  common,  he  pleaded  his  right  of  common  as 
a  justification.  Replication,  a  license  to  build  the  house,  given  by 
the  party,  from  whom  the  estate  to  which  the  common  was  appur- 
tenant came,  to  the  defendant.  Held,  the  distinction  between  the 
abandonment  and  acquisition  of  the  right  in  an  easement,  which 
was  contended  for  in  support  of  the  replication,  applied,  if  at  all, 
only  as  between  the  original  parties,  and  not  as  against  the  defend- 
ant, a  subsequent  grantee.^  So  a  parol  license  from  A.  to  B.,  to 
take  trees  from  A.'s  land  so  long  as  B.  pleases,  expires  with  the 
death  of  A.^(J)  But  where  the  defendant  gave  a  written  license 
to  A.  and  B.  to  take  logs  from  the  plaintiffls  land,  and,  after  the 
death  of  A.,  B.,  under  his  license,  and  without  intimation  from  the 
defendant  of  a  revocation,  took  the  logs  ;  held,  the  license  was  not 
revoked  by  the  death  of  A.,  but  the  defendant  was  liable  in  tres- 
pass.'^ 

1  Pierrepont  v.  Bernard,  5  Barb.  364.  3  Perry  v.  Fitzhugh,  8  Qii.  B.  757. 

2  Vandenburgh    v.    Van    Bergen,    13  *  Putney  v.  Day,  6  N.H.  430. 
Jobns.   212.      See  Co.  Lit.   145  a;   Hey-  ^  Cbandler  r.  Spear,  22  Verm.  388. 
ward's  case,  2  Rep.  36  a,  b. 

(ii)   A  distinction  bas  been  made  be-  life."     Held,  A.  did  not  take  a  life-estate, 

tween  a  license  of  profit,  or  profit  a  pren-  but  bis  title  was  under  a  license  ;  and,  of 

dre,  and  a  personal  license  of  pleasure;  the  A.'s  children,  only  those  took  who  were 

former  of  which  may  be  exercised  by  an  in  esse  at  the  testator's  deatli.     Calhoun  v. 

agent.     Winckham  v.  Hawker,  7  Mee.  &  Jester,  1  Jones,  474. 

W.   63.     A  license  to  search  for,  raise.  That,  in  Courts  of  Equity,  the  future 

and  carry  away  metals,  and  convert  them  enjoyment  of  an  executed  parol  license, 

to  the  party's  own  use,  has  been  held  as-  granted  upon  consideration,  or  upon  tlie 

signable.    Muskett  v.  Hill,  5  Bhig.  N.  6'J4.  faith  of  which  monej^  has  been  expended, 

{b)  DeTise    to    A.'s    children    of    "  a  will   be    enforced ;   at   all    events,  where 

plantation  to  come  into  their  possession,  adequate  compensation  in  diunages  cannot 

or  into   tlie  hands  of  the  executors   for  be  obtained;  and  that  gnintees,  jjurchas- 

their  benefit,  at  the  testator's  deatli,  i)ro-  ing  with  notice,  are  bound, — see  Snow- 

viding  tiiat  A.  have  the  privilege  of  living  den  v.   Wilas,    19  Ind.   10;    Stephens  v. 

on  the  place  with  his  children  during  his  Benson,  ib.  367. 


130  LAW    OP   VENDORS    AND    PURCHASERS.  [CHAP.    VIII. 

9.  Upon  the  same  principle,  the  time  of  executing  a  license  is 
not  to  be  extended  beyond  its  strict  terms.  Thus  a  general,  parol 
license,  to  cut  and  carry  away  wood  growing  upon  land,  if  avail- 
able at  all,  must  be  acted  upon  within  reasonable  time ;  and  applies 
only  to  the  wood  as  it  is  substantially  at  the  time  of  giving  the 
license.  What  is  a  reasonable  time,  the  facts  being  agreed,  is  for 
the  Court.  Such  license  does  not  continue  fifteen  years,  not  being 
acted  upon.^ 

10.  Upon  the  same  principle,  a  conveyance  by  the  owner  of  the 
land  puts  an  end  to  a  license  for  an  easement ;  and  the  licensee, 
afterwards  entering,  though  without  notice  of  the  deed,  is  liable 
in  trespass  to  the  purchaser.^  Thus  a  license  to  erect  a  house  on 
one's  land,  for  the  use  of  the  builder,  does  not  affect  the  title  of  a 
purchaser  of  the  land,  without  notice  ;  and  notice  is  not  to  be  in- 
ferred from  occupation  of  the  house.^(<«)  As  where  A.,  the  owner 
of  land,  gave  B.  liberty  to  erect  a  dwelling-house  for  his  use 
thereon.  B.  erected  it  accordingly,  and  lived  therein  eleven  years, 
when  he  died,  having  executed  a  deed  of  such  house  to  the  plain- 
tiff, his  son.  A.  had  previously  conveyed  the  land  to  the  defend- 
ant, by  deeds  containing  no  notice  or  exception  of  siich  license. 
The  defendant  brought  ejectment  for  the  land  and  house  against 
the  party  in  possession,  recovered  judgment,  and,  by  virtue  of  an 
execution,  was  put  in  possession,  and  so  continued  more  tlian  a 
year,  when  he  took  down  the  house,  thereby  destroying  it  as  such, 
but  did  not  take  away  the  materials.  The  plaintiff  then  brings  an 
action  of  trespass.     Held,  the  defendant  was  not  liable.^ 

11.  In  regard  to  the  revocation  of  licenses, (5)  a  very  fruitful  sub- 
ject of  discussion  has  been,  whether  a  license  can  be  revoked  after 
it  has  been  executed  ;  and,  if  so,  whether  only  upon  the  terms  of  a 
reasonable  indemnity  to  the  party,  who  may  have  acted  and  in- 
curred expense  under  and  upon  the  faith  of  such  license. (c) 

1  Gilmore  v.  Wilbur,  12  Pick.  120.  3  Prince  v.  Case,  10  Conn.  375. 

2  Wallis  V.  Harrison,  4  M.  &  W.  538.  4  ibid. 

(a)  Such  license  is  also  a  personal  priv-  (6)  That  a  license  is  revocable,  see  Gil- 

ilege,  not  extending  to  heirs  or  assigns  ;  more   v.    Wilson,    53   Penn. ;    Law   Eeg. 

and,  whether  countermandable  or  not  dur-  Dec.  1867,  p.  128. 

ing  the  life  of  the  builder,  expires  at  his  (c)  In  Jamieson  v.  Millemann,  3  Duer, 

death.      Whether  any  notice  to  remove  255,  it  was  held,  that  the  main  distinction 

the  building,  after  his  deatli,  be  necessary  between  a  grant  and  license  to  enter  upon 

or  not,  a  subsequent  recovery  in  an  action  lands  is,  that  the  latter,  whether  made  by 

of  ejectment,  by  the  grantee  of  the  land,  parol  or  in  writing  is,  in  all  cases,  revoca- 

with  possession  taken  and  lield  for  more  ble  at  pleasure.     The  single  exception  is 

than  a  year,  is  sufficient  notice.  where  the  license  is  annexed  as  an  inci- 


CHAP,  viir.] 


PAROL    LICENSE. 


131 


12.  The  weight  of  authority  u])on  tliis  subject  is,  that,  where 
title  to  real  estate  is  not  involved,  a  license  is  not  revocable  after 
it  has  been  executed,  or,  rather,  executed  in  part,  to  the  injury  of 
the  party  who  has  acted  under  it.^     This  is  more  especially  so  in 

1  Snowden  v.  Wilas,  19  Ind.  10. 

don,  4  M.  &  Gil.  562 ;  Ilewlins  r.  Ship- 
man,  5  B.  &  C.  221 ;  Wood  v.  Leadbilter, 
13  M.  &  W.  838 ;  Bryan  v.  Whistler,  8 
B.  &  C.  288;  Cocker  v.  Cooper,  1  Cr. 
Mees.  &  R.  418  ;  Bird  u.  Ili}j;<4iiison,  4  Nev. 
&  Man.  505;  Cook  v.  Stearns,  11  IMa.ss. 
536 ;  Hayes  v.  Richardson,  1  Gill  &  John. 
366 ;  Price  v.  Case,  10  Conn.  375 ;  ex 
parte  Coburn,  1  Cow.  568  ;  Munifbrd  v. 
Whitney,  15  Wend.  880;  Miller  v.  Au- 
burn, &c.,  6  Plill,  61  ;  Ilouglitailing  v. 
Houghtailing,  5  Barb.  371) ;  Brown  v. 
Woodworth,  ib.  551.  It  is  added,  that 
the  case  of  Taylor  v.  Waters,  7  Taunt. 
374,  holding  a  contrary  doctrine,  has  been 
conclusively  overruled  ;  and  the  decisions 
in  Pennsylvania  proceed  upon  a  doctrine 
peculiar  to  that  State,  where  there  is  no 
Court  having  x'ower  to  administer  what 
is  usually  termed  equitdhk  relief.  Upon 
the  point  of  mukini  oiiuiuU  before  revoca- 
tion, it  is  said  :  "  I  am  not  aware  that  the 
assertion  rests  upon  any  other  authority 
than  the  dictnni  of  Lorcl  Ellenborotigli  in 
Winton  v.  Brockwell ;  and  this,  we  have 
the  authority  of  the  same  learned  Judge 
for  saying,  must  be  understood  in  a  strict 
I'eterence  to  the  particidar  circumstances 
of  the  case  in  which  it  was  uttered  ;  that 
is,  as  applicable  only  where  the  license 
has  been  fully  executed,  and  involves  no 
more  than  the  waiver  or  relinquishment 
of  an  easement  or  other  privilege.  In  the 
case  of  The  King  v.  The  Inhabitants,  &c., 
it  was  held  by  the  Court  of  King's  Bench, 
that  a  license  affecting  the  use  or  enjoy- 
ment of  the  realty,  alfhouc/h  carried  into 
execution,  is  revocable  at  pleasure,  though 
it  deprive  the  licensee  of  the  fruits  of  his 
money  or  labor  ;  and  this  principle  is  dis- 
tinctly affirmed  in  the  subsequent  cases 
of  Hewlins  v.  Shipman,  and  Wood  v. 
Leadbitter.  When  a  license  is  not  sim- 
ply gratuitous,  but  is  founded  on  a  valu- 
able consideration,  cases  may  doubtless 
arise  in  which  the  licensee  would  iiave  a 
just  claim  to  be  re-imbursed  for  his  ex- 
penses, and  compensated  for  his  labor ; 
but  even  in  such  cases,  if  the  license 
affects  the  use  or  enjoyment  of  the  realty 
by  the  licensor  by  creating  an  interest 
inconsistent  with  his  own,  I  appreliend  it 
has  never  been  decided  that  the  i)ayment 
or  a  tender  of  full  amends  is  a  cuiulilion 
precedent  to  a  revocation  of  the  license." 


dent  to  a  valid  grant,  and  its  exercise 
necessary  to  a  beneficial  enjoyment  of  the 
grant.  Also,  that  a  parol  license  which, 
if  held  to  be  irrevocable,  would  operate 
as  a  transfer  of  an  estate  or  interest  in 
land,  is  wholly  void,  except  as  a  justifica- 
tion for  acts  done  under  and  prior  to  its 
revocation.  And,  in  such  cases,  a  tender 
of  amends  to  the  part}'  who  has  incurred 
expenses  in  acting  under  the  license  is 
not  a  condition  precedent  to  a  revocation  ; 
but  sucli  party  is  liable  for  all  damages 
subsequent  to  the  revocation.  Duer,  J., 
says  (p.  259),  "  Here  the  permission  to 
the  defendant,  to  enter  upon  the  lot  of  the 
plaintiff,  was  not  given  for  a  temporary 
purpose,  but  for  that  of  erecting  a  perma- 
nent building,  which  he  was  to  use  and 
occupy  during  the  residue  of  the  plain- 
tiflPs  term  ;  and  it  is  plain,  that,  by  hold- 
ing that  this  permission  could  not  be 
revoked,  we  stiould  give  to  a  mere  and 
verbal  authority  the  effect  and  operation 
of  a  valid  grant,  and  would  in  effect  decide 
that  an  interest  in  lands  may  be  trans- 
ferred by  parol."  The  leai-ned  Judge 
proceeds  to  remark,  that  the  only  author- 
ities for  such  a  doctrine  are  certain  cases 
in  Pennsylvania,  and  the  case  of  Winter 
V.  Broderick,  8  E.  308  ;  and  that,  in  the 
latter  case,  the  license  did  not  transfer  an 
interest  in  land,  but  merely  suspended 
the  enjoyment  of  an  easement.  The  doc- 
trine of  the  case  is,  that  where  full  effect 
may  be  given  to  a  license  by  acts  done 
on  the  lands  of  the  licensee,  although  by 
tliese  acts  the  enjoyment  of  an  easement 
attached  to  the  land  of  the  licensor  may 
be  defi?ated,  the  usual  objections  to  con- 
sidering a  license  irrevocable  do  not  apply, 
and  consequently  that  in  such  cases,  if 
the  license  has  been  fully  executed,  it 
cannot  be  revoked.  Moore  v.  Rawson, 
3  B.  &  C.  332 ;  Liggins  v.  Inge,  7  Bing. 
082.  But  that  this  doctrine  is  wholly  in- 
applicable when  the  acts  which  the  license 
warrants  are  to  be  done  by  the  licensee 
upon  the  lands  of  the  licensor,  and  the 
effect  of  holding  the  license  to  be  irrevo- 
cable, would  be  to  give  to  the  licensee  a 
permanent  interest  or  easement  in  these 
lands,  has  been  determined  in  numerous 
cases  in  the  English  Courts,  in  those  of 
our  sister  States,  and  emphatically  in 
our  own.  Eentiman  v.  Smith, -4  i>ast, 
109;   The  King  v.  Inhabitants  of  Horn- 


132  LAW   OF   VENDORS    AND    PURCHASERS.  [CHAP.    VIII. 

equity,  and  where  damages  would  be  an  inadequate  compensation.^ 
Several  cases  have  been  already  referred  to  in  the  present  chapter, 
which  illustrate  this  point.  The  following  may  be  added,  as  turn- 
ing more  directly  upon  the  question  of  revocation.  In  an  old  case, 
it  is  held,  that  a  license,  coiipled  with  the  grant  of  an  interest,  is 
irrevocable,  so  far  as  it  is  essentially  necessary  to  the  enjoyment 
of  the  grant.  Thus  if  one  permit  another  to  cut  down  a  tree  on 
the  land  of  the  former,  and  to  come  on  the  land,  at  any  subsequent 
period,  for  the  purpose  of  removing  it,  this  is  said  to  amount  to 
the  grant  of  an  absolute  interest  in  the  tree,  as  soon  as  the  per- 
mission to  cut  it  has  been  executed  ;  and  the  license  is  irrevocable, 
so  far  as  essential  to  the  possession  and  enjoyment  of  the  grant.'-^ 
And,  in  another  case,  it  is  said,  "  A  license  under  seal  (provided 
it  be  a  mere  license)  is  as  revocable  as  a  license  by  parol ;  and, 
on  the  other  hand,  a  license  by  parol,  coupled  with  a  grant,  is  as 
irrevocable  as  a  license  by  deed,  provided  only  that  the  grant  is 
of  a  nature  capable  of  being  made  by  parol."  ^  So  in  case  of  an 
oral  agreement  of  the  plaintiff  with  the  defendant,  that  the  latter 
might  cut  trees  on  land  of  the  former,  peel  them,  and  take  the 
bark  ;  the  defendant  having  cut  and  peeled  the  trees,  the  plaintiff 
forbids  his  entering  to  take  the  bark,  and  brings  an  action  of  tres- 
pass for  such  entry.  Held,  the  action  did  not  lie,  because  the 
bark,  when  peeled,  became  the  property  of  the  defendant,  and  was 
on  the  plaintiff's  land  by  his  consent,  and  the  defendant  therefore 
had  a  right  to  remove  it.  Had  the  plaintiff  done  so,  he  would 
have  been  liable  in  trover.^  So  in  case  of  a  sale  of  mulberry-trees 
in  a  nursery,  raised  to  be  sold  and  transplanted,  with  a  license  to 
enter  and  remove  them  ;  held,  the  sale  passed  no  interest  in  the 
land,  within  the  statute  ;  that  the  license  was  revocable,  but,  if 
revoked  in  violation  of  the  agreement  to  sell  the  trees,  and  give 
liberty  to  enter  and  remove  them,  to  the  prejudice  of  the  pur- 
chaser, the  vendor  would  be  liable  for  damages,  the  contract  bind- 
ing him  either  to  remove  the  trees  himself,  or  permit  the  purchaser 
to  do  it.^ 

13.  But  the  class  of  cases,  in  connection  with  which  these  ques- 
tions have  chiefly  arisen,  has  been  that  of  solid  and  permanent 

1  19  Ind.  10  ;   Stephens  v.  Benson,  ib.  ^  Per  Alderson,  B.     Wood   v.  Lead- 
367.                                                                    bitter,  13  Mee.  &  W.  838. 

2  Thomas  v.  Sorell,  Vaughan,  35.  *  Nettleton  v.  Sikes,  8  Met.  34. 

5  Whitmarsh  v.  Walker,  1  Met.  313. 


CHAP.    VIII.]  PAROL    LICENSE.  133 

erections,  constructions,  or  excavations,  —  such  as  buildings,  dams, 
sluiceways,  &c.,  —  by  the  party  licensed,  upon  the  land  of  the 
party  licensing,  necessarily  involving  time,  labor,  and  ex])ense, 
and  the  chief  value  of  which  consists  in  the  continuing  right  to 
hold  and  use  them.  It  is  difficult  to  deduce  from  the  authorities 
any  well-defined  rule  upon  these  points  of  discussion. (a)  They 
involve,  in  its  most  practical  application,  the  very  nice  and  shadowy 
distinction  already  adverted  to,  between  a  license  and  an  easement ; 
or  rather,  if  the  doctrine  were  adopted  without  qualification,  that 
an  executed  license  is  irrevocable,  it  is  quite  obvious  that  the 
distinction  in  question  would  cease  to  exist ;  because  the  class 
of  works  above  referred  to  are,  in  the  fullest  sense  of  the  word, 
easements,  and,  in  a  very  large  proportion  of  cases,  no  question 
arises  in  regard  to  them  until  after  they  have  been  completed,  and 
put  in  actual  operation.  Accordingly,  in  a  leading  case  upon  this 
subject,  already  cited,i  which  was  an  action  of  trespass  qu.  clans. 
for  entering  the  close  of  the  plaintiffs,  and  digging  up  the  soil ;  the 
defendant  having  pleaded  a  license  to  erect  and  maintain  a  dam, 
and  an  entry  for  the  purpose  of  repairing  it,  the  plea  was  held  bad 
on  demurrer,  as  being  in  effect  the  claim  of  an  easement.  The 
case  would  of  course  have  been  still  stronger  for  the  plaintiffs,  had 
they  relied  upon  a  revocation  of  the  license  by  way  of  replication. 
But  the  remarks  of  the  Court  present  in  a  strong  light  the  general 
difficulties  of  giving  to  a  verbal  license  the  permanent  effect  con- 
tended for  by  the  defendant.  "  Licenses  to  do  a  particular  act," 
says  Parker,  C.J.,  "  do  not  in  any  degree  touch  upon  the  policy  of 
the  law,  which  requires  that  bargains  respecting  the  title  or  inter- 
est in  real  estate  shall  be  by  deed  or  in  writing.  But  a  permanent 
right  to  hold  another's  land  for  a  particular  purpose,  and  to  enter 
upon  it  at  all  times  without  his  consent,  is  an  important  interest, 
which  ought  not  to  pass  without  writing,  and  is  the  very  object 
provided  for  by  our  statute.  If  the  defendant  had  a  license  from 
the  former  owners  of  the  plaintiff's  close  to  make  the  bank,  dam, 
and  canal  in  their  land,  this  extended  only  to  the  act  done,  so  as 
to  save  him  from  their  action  of  trespass  for  that  particular  act ; 
but  it  did  not  carry  with  it  an  authority  at  any  future  time  to 

1  Cook  V.  Stearns,  11  Mass.  533. 

(a)  It  has  been  remarked  (per  Tenney,     arisen  from  the  diiferent  ideas  attached 
J.,  Pitman  v.  Poor,  38  Maine,  237),  that     to  the  word  license." 
"  much    of  tlie    discrepancy    may    liave 


134  LAW    OF   VENDORS    AND   PURCHASERS.  [CHAP.    VIII. 

enter  upon  the  land.  As  to  so  much  of  the  license  as  was  not 
executed,  it  was  countermandable  ;  and  transferring  the  land  to 
another,  or  even  leasing  it  without  any  reservation,  would,  of  itself, 
be  a  countermand.  If  the  defendant's  plea  were  held  to  be  a  bar 
to  the  action,  all  the  mischiefs  and  uncertainties  which  the  legis- 
lature intended  to  avoid  by  requiring  such  bargains  to  be  put  in 
writing,  would  be  revived  ;  and  purchasers  of  estates  would  be 
without  the  means  of  knowing  whether  incumbrances  existed  or 
not  on  the  land  which  they  purchased." 

14.  The  same  doctrine  has  been  affirmed  by  many  other  decisions. 
Thus,  in  a  leading  English  case,  where  the  defendant,  after  sanc- 
tioning, and  actually  aiding  in,  the  construction  of  a  sluice  by  the 
plaintiff,  which  traversed  the  defendant's  land,  stopped  up  the 
sluice ;  held,  he  was  not  liable  to  an  action. ^  So,  in  trespass  for 
assault  and  false  imprisonment,  the  plea  was,  that,  at  the  time  of 
the  supposed  trespass,  the  plaintiff  was  in  a  close  of  Lord  E., 
and  the  defendant,  as  the  servant  of  Lord  E.,  and  at  his  command, 
molliter  manus  imposuit  on  the  plaintiff,  to  remove  him  from  the 
said  close,  which  was  the  trespass  complained  of.  Replication, 
that  the  plaintiff  was  in  the  close  by  the  leave  and  license  of  Lord 
E.,  wliich  was  traversed  by  the  rejoinder.  The  evidence  was,  that 
Lord  E.  was  the  steward  of  the  Doncaster  races ;  that  tickets  of 
admission  to  the  grand  stand  were  issued,  with  his  sanction,  and 
sold  for  a  guinea  each,  entitling  the  holders  to  come  into  the  stand 
and  the  inclosure  round  it  during  the  races ;  that  the  defendant, 
by  order  of  Lord  E.,  desired  the  plaintiff  to  leave  it,  and,  on  his 
refusing  to  do  so,  the  defendant,  after  a  reasonable  time,  put  him 
out,  using  no  unnecessary  violence,  but  not  returning  the  guinea. 
Held,  the  jury  were  properly  directed  to  find  for  the  defendant ; 
that  a  right  to  come  and  remain  for  a  certain  time  on  the  land  of 
another  can  be  granted  only  by  deed  ;  and  a  parol  license  to  do  so, 
though  money  be  paid  for  it,  is  revocable  at  any  time,  and  without 
paying  back  the  money .^  So  upon  a  bill  in  equity  for  the  abatement 
of  a  nuisance,  alleged  to  be  a  mill-dam  on  the  plaintiff's  land,  it 
appeared  that  A.  gave  to  the  defendant  a  verbal  license  to  erect 
and  continue  a  mill-dam  on  A.'s  land,  and  to  dig  a  ditch  tlirough 

1  Fentimany.  Smith,4E.107;  Ruggles  v.   Richardson,!  Gill  &  J.   366;  Den  v. 

V.  Lesure,  4  Pick.  187  ;  Stevens  v.  Stevens,  Baldwin,  1  Zat)r.  390. 

11  Met.  251  ;  Coburn,  1  Cow.  568 ;  Mum-  2  ^Vood  v.  Leadbitter,  13  Mees.  &  W. 

ford  V.  Whitney,  15  Wend.  380  ;  Hough-  338. 
tailing  v.  Houghtailing,  5  Barb.  379  ;  Hays 


CHAP.    VIII.]  PAROL    LICENSE.  135 

tlie  land,  for  conveying  water  to  a  mill  which  the  defendant  was 
about  to  erect  on  his  own  land.  The  defendant  made  the  dam,  dug 
the  ditch,  and  afterwards  erected  the  mill,  and  continued  them 
during  A.'s  life.  After  granting  the  license,  A.  conveyed  his  land 
to  the  plaintiff,  without  reservation.  The  defendant  continued  the 
dam  and  ditch  after  A.'s  death,  for  the  purj)ose  of  working 
the  mill.  The  plaintiff,  having  requested  him  to  remove  the  dam, 
and  fill  up  the  ditch,  upon  his  refusal,  attempted  to  remove  the 
dam,  and  tore  down  part  of  it;  whereupon  the  defendant  interfered 
by  force,  prevented  further  proceedings,  and  repaired  the  dam.  The 
plaintiff  then  brings  tliis  bill,  and  a  jury,  upon  an  issue  submitted 
to  them,  found  the  dam  to  be  a  nuisance.  Held,  the  plaintiff  w^as 
entitled  to  a  decree  for  abatement,  and  a  perpetual  injunction ; 
that  the  defendant  was  not  liable  for  any  thing  done  before  revoca- 
tion of  the  license,  and  therefore  not  chargeable  with  the  expenses 
of  removing  the  old  dam  ;  but  that  he  was  liable  for  building  a  new 
dam  or  repairing  the  old  one,  after  such  revocation,  and  for  the 
expense  of  abating  the  new  dam.i  So,  in  1769,  a  parish  erected  a 
meeting-house  on  land  granted  them  by  the  town,  and  some  of  the 
parishioners  erected  sheds  on  the  land.  In  1801,  other  sheds  were 
built  by  authority  of  the  parish.  In  1815,  the  sheds  were  blown 
down,  and  the  parish,  proposing  to  erect  a  new  house  of  worship 
in  another  place,  voted  not  to  authorize  the  re-erection  of  the  sheds 
in  the  former  site,  and  appointed  the  defendants  to  be  a  committee 
to  regulate  the  place  and  mode  of  erecting  new  sheds  ;  and  the  for- 
mer owners  erected  new  sheds,  under  direction  of  the  committee, 
on  other  parts  of  the  land.  The  plaintiff',  one  of  the  old  proprie- 
tors, was  notified  by  the  defendants  to  remove  his  shed,  and,  upon 
his  failing  to  do  so,  the  defendants  removed  it,  and  the  plaintiff 
brings  an  action  of  trespass  against  them  for  so  doing.  Held,  the 
plaintiff  was  not  a  tenant  at  sufferance,  the  relation  of  landlord  and 
tenant  never  having  existed  between  the  parties ;  but,  the  parish 
merely  having  permitted  the  parishioners  to  place  their  sheds  on 
the  ground  as  a  matter  of  accommodation  and  favor,  that  no  right 
or  title  to,  or  easement  in,  the  land  was  thus  acquired  ;  but  that 
the  parish  might  at  pleasure  revoke  the  license.^ 

15.  But,  on  the  other  hand,  it  has  been  held  in  New  Hampshire, 
in  case  of  a  parol  license  to  erect  a  dam,  for  the  benefit  of  both 

1  Stevens  v.  Stevens,  11  Met.  251.  ^  Bacheldcr  v.  Wakefield,  8  Cush.  243. 


136  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    VIII. 

parties,  that,  after  execution,  it  could  not  be  revoked,  without  a 
tender  of  the  expense  of  erecting  it.^  So  it  has  been  held,  that  a 
license  to  build  and  maintain  a  bridge  on  another's  land  was  either 
irrevocable,  or  else  could  not  be  revoked  except  on  payment  of  all 
expense  and  damage.  The  Court  say,  "  A  license  to  an  individual, 
to  do  an  act  beneficial  to  him,  but  requiring  an  expenditure  upon 
another's  land,  is  held  not  to  be  revocable  after  it  has  been  once 
acted  upon.  Such  a  license  is  a  direct  encouragement  to  expend 
money ;  and  it  is  said  it  would  be  against  conscience  to  revoke  it, 
as  soon  as  the  expenditure  begins  to  be  beneficial.  A  license  to 
erect  a  bridge  for  the  taking  of  toll  is  clearly  distinguished  from  a 
mere  easement  of  passing  and  repassing  ;  and  we  think  when  it  is 
once  executed,  it  is  either  irrevocable  while  the  bridge  continues,  or, 
if  revocable  at  all,  can  only  be  on  full  compensation  for  all  expendi- 
tures made,  and  damage  occasioned,  by  such  revocation."  ^  So  it 
has  been  held  in  Maine,  that,  if  there  be  a  parol  agreement  for  a 
right  of  way,  or  other  interest  in  land,  and  any  acts  be  done  in 
pursuance  thereof  whicli  are  prejudicial  to  the  party  performing 
them,  and  are  in  part  execution  of  the  contract,  the  agreement  is 
valid,  notwithstanding  the  Statute  of  Frauds.  Therefore,  the  owner 
of  land  having,  for  valuable  consideration,  given  license  to  another 
by  parol  to  build  a  bridge  on  his  land,  an  action  of  trespass  will  lie 
against  the  former  for  taking  away  the  bridge,  without  the  consent 
of  the  latter.-^  So  in  a  late  English  case,  being  an  action  of  tres- 
pass qu.  claus.  goods  upon  the  plaintiff's  land  were  sold  to  the 
defendant,  by  the  conditions  of  sale,  to  which  the  plaintiff  was  a 
party,  the  buyer  being  allowed  to  enter  and  take  the  goods.  The 
defendant,  having  entered  to  take  tliem,  justifies  under  a  plea  of 
leave  and  license,  to  which  the  plaintiff  replies  de  injuria.  Held, 
the  defendant  was  entitled  to  a  verdict,  though  the  plaintiff  had, 
between  the  sale  and  entry,  locked  the  gates,  and  forbidden  the 
defendant  to  enter,  and  the  defendant  had  broken  down  the  gates, 
and  entered  to  take  the  goods ;  the  plaintiff,  after  the  sale,  not  having 
power  to  revoke  the  license.'^  So  it  is  held,  that  a  parol  license  to 
put  a  sky-light  over  the  defendant's  area  (which  impeded  the  light 
and  air  from  coming  to  the  plaintiff's  dwelling-house  through  a 
window)  cannot  be  recalled  at  pleasure,  after  it  has  been  executed 

1  Woodbury  v.  Parshley,  7  N.H.  237.  3  Ricker  v.  Kelly,  1  Greenl.  117. 

^  Ameriscoggin,  &c.  v.  Bragg,  11  N.H.  4  Wood  v.  Mauley,  11  Ad.  &  El.  34. 


CHAP.    VIII.]  PAROL    LICENSE.  137 

at  the  defendant's  expense  ;  at  least,  not  without  tenderhig  the 
expenses  lie  had  been  put  to ;  and  therefore  no  action  lies  as  for  a 
private  nuisance,  in  stopi)ing  the  light  and  air,  &c.,  and  eonnnuni- 
cating  a  stench  from  the  defendant's  premises  to  the  i)laintil"f's 
house,  by  means  of  such  sky-light.  ^ 

16.  The  remarks  quoted  above  (§  lo),  and  similar  ones  in  other 
cases,  seem  to  pass  beyond  the  technical  doctrine  of  license,  to  the 
distinct  though  analogous  title  by  estojjpel ;  which,  however,  if 
indiscriminately  applied  to  all  cases  of  verbal  acquiescence  in  the 
permanent  use  of  real  property,  would  at  once  do  away  with 
the  strict  rules  relating  to  the  mode  of  creating  an  easement. 
There  is  another  class  of  cases,  somewhat  favoring  this  view  of  a 
license,  according  to  which,  one  party  erecting  a  building  upon  the 
land  of  another,  by  permission  of  the  latter,  owns  the  building  as 
personal  property.^  And,  moreover,  the  general  doctrine,  to  be 
considered  in  the  next  chapter,  that,  in  equity,  part-performance  of 
a  parol  contract  renders  it  valid  ;  if  carried  out  in  courts  of  law, 
would  seem  to  favor  the  theory  that  a  license  becomes  irrevocable 
by  its  execution.  Still,  however,  as  already  stated,  the  weight  of 
authority,  and  the  only  doctrine  consistent  with  the  security  of 
title  to  real  estate,  is,  that  no  permanent  ownership  can  be  thus 
created. 

1  Winter  v.  Brockwell,  8  East,  308.  19  Conn.  154  ;  Eogers  v.  Woodbury,  15 

2  Russell  V.  Richards,  2  Fairf.  371 ;  Pick.  156 ;  Marcey  v.  Darling,  8  Pick. 
Ashmun  v.  Williams,  8  Pick.  402 ;  Wells  283  ;  Wood  v.  Hewett,  8  Q.  B.  913  ; 
V.  Bannister,  4  Mass.  514 ;  Curtiss  v.  Hoyt,  White's,  &c.,  10  Barr,  252. 


138  LAW  OF  VENDOES  AND  PURCHASEES.      [CHAP.  IX. 


CHAPTER   IX. 


PART-PERFORMANCE. 

1.  License  and  part-performance.  12.     The    effect    of    part-performance    is 

2.  Part-performance,  at  law.  founded  on  fraud. 

5.  Entire  performance,  in  Equity.  12  a.     Effect  of  pnymerit. 

6.  Part-performance  in  Equity.  15.     Qualitications  of  the  general  rule. 

7.  Who  may  avail  himself  of  part-per-  16.     Subsequent  purchasers;  notice, 
formance.  17.     Doctrine  in  the  United  States. 

8-15.     What  acts  are  sutficient.  18.     Compensation  for  expenditures,  &c. 

11.     Proof  of  the  terms  of  a  parol  agree- 
ment. 

1.  Having  in  the  last  chapter  considered  that  important  excep- 
tion or  qualification  to  the  Statute  of  Frauds,  as  applied  to  the  sale 
and  purchase  of  lands,  which  grows  out  of  what  is  termed  in  law 
a  license,  we  now  proceed  to  speak  of  another  equally  important, 
arising  from  part-performance  of  a  parol  agreement.  We  have 
already  adverted  to  the  obvious  analogy  between  these  two  topics 
(ch.  8). 

2.  It  has  been  sometimes  held,  that  the  same  construction  of 
the  Statute  of  Frauds  is  to  prevail  at  law  and  in  equity,  and  there- 
fore that  part-performance  of  a  parol  agreement  takes  it  out  of  the 
statute,  alike  in  both  tribunals. ^(a) 

3.  Thus  in  an  action  on  the  case,  for  breach  of  an  agreement  to 
sell  and  convey  to  the  plaintiff,  in  fee-simple,  a  tract  of  land,  the 
plaintiff  offered  parol  evidence  of  the  agreement,  payment  of 
the  consideration,  the  defendant's  subsequent  acknowledgment 
of  the  sale  and  payment ;  and  of  the  defendant's  refusal  to  execute 
a  conveyance.  Held,  the  agreement  having  been  executed  by  one 
of  the  parties,  the  action  could  be  maintained.^  So  the  statute 
does  not  avoid  a  note  for  the  purchase-money  of  land  sold  by  parol, 
but  of  which  the  purchaser  has  taken  possession. ^     So  a  grantor 

1  Slatter  v.  Meek,  35  Ala.  528  ;  Brodie         2  Bell  v.  Andrews.  4  Dall.  152. 
V.  St.  Paul,  1  Ves.  326.  3  Gillespie  v.  Battle,  15  Ala.  276. 

(a)  In  a  very  recent  case,  Lord  Cran-  one  of  the  contracting  parties  to  escape 

worth,  L.C.,  remarked  :  "  It  would  be  a  from  the  consequences  by  simply  shifting 

scandal  to  suppose,  that,  when  the  legis-  his  sphere  of  operations  from  a  court  of 

lature   has  said  that  no   action   shall  be  law  to  a  court  of  equity."     Caton  v.  Ca- 

brought    on    a   parol  contract  of  a   par-  ton.  Law  Rep.  (Eng.)  Eq.  March,  1866, 

ticular  description,  it  should  be  open  to  p.  146. 


CHAP.    IX,]  PART-PERFORMANCE.  139 

may  maintain  an  action  for  a  ])art  of  the  consideration  expressed 
in  the  deed  to  have  been  paid,  but  which  by  mistake  was  not  paid. 
Parker,  C.J.,  says  :  "  It  is  not  a  case  within  the  Statute  of  Frauds, 
because  it  is  not  a  contract  for  the  sale  of  lands.  That  contract 
was  executed  and  finished  by  the  deed  :  this  is  only  a  demand  for 
money  arising  out  of  that  contract."  ^(a) 

4.  But,  in  general,  the  doctrine  of  equity,  by  which  payment  of 
part  of  the  purchase-money  on  a  parol  contract,  and  taking  posses- 
sion of  the  premises  under  the  contract,  take  the  case  out  of  tlie 
statute,  is  held  not  to  prevail  in  courts  of  law.^  It  seems,  that,  at  law, 
nothing  short  of  a  full  and  complete  performance,  by  one  party,  of 
an  agreement  within  the  statute,  will  take  it  out  of  the  operation 
of  the  statute.  As  where  nothing  remains  but  to  pay  over  the 
money  received ;  in  which  case  the  statute  furnishes  no  defence.^ 
Thus,  at  law,  a  parol  contract  for  the  sale  of  land  is  void,  notwith- 
standing possession  and  improvements  by  the  purchaser ;  and 
money  paid  thereon  may  be  recovered  back  from  the  vendor  or  his 
heirs,  they  being  unable  or  failing  to  perform  the  contract.^  So  a 
promise  by  a  father  to  give  his  son  a  tract  of  land  by  his  will,  fol- 
lowed by  expenditure  in  improvements,  not,  however,  in  execution 
of  the  contract,  or  at  the  father's  request,  is  without  consideration, 
and  cannot  be  enforced.^  So  assumpsit  does  not  lie,  upon  an  agree- 
ment of  the  defendant  with  the  plaintiff,  to  convey  to  him  land  on 
one  side  of  a  highway,  in  consideration  of  the  plaintiff's  consenting 
to  the  taking  of  his  own  land  on  the  other  side  of  the  highway, 
without  any  claim  for  damages ;  although  the  plaintiff  has  per- 
formed his  part  of  the  contract,  Dewey,  J.,  says:  "Such  a 
doctrine  (that  of  part-performance)  has,  under  proper  limitations, 
often  been  recognized  in  the  Courts  of  Equity,  where  it  was  re- 
quired in  furtherance  of  justice,  and  to  prevent  manifest  fraud; 
but  it  has  obtained  no  permanent  sanction  as  a  principle  of  juris- 
prudence in  the  courts  of  law.     Several  of  the  cases  above  cited 

1  Wilkinson   v.    Scott,  17   Mass.   249,  232;  Eaton  v.  Whitaker,  18  Conn.  222; 

258;  Butler  v.  Lee,  11  Ala.  885.  Linscott  v.  M'Intire,  15  Maine,  201. 

'^  Barickman  ?;.  Kuykendall,  G  Blackf.  *  Sailors  v.  Gambril,  1   Cart.  88;  Bar- 

21 ;  Brandeis  v.  Neustadtl,  13  Wis.  142.  ickman  v.  Kuykendall,  (3  Blackf.  21. 

3  Baldwin  v.  Palmer,  10  N.Y.  (6  Seld.),         5  McClure  v.  McCIure,  1  Barr,  374,  379. 

(a)  A  parol  variation  in  an  executory  the  conveyance  is  not  made  until  after 

written  contract  for  a  conveyance  is  bind-  the  action  is  commenced.     Butler  v.  Lee, 

ing  after  it  has  been  executed.     Moore  v.  11  Ala.  885. 
McAllister,  34  Miss.  500.     Otherwise,  if 


140  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    IX. 

will  be  found  to  have  presented  strong  equitable  claims  for  the 
interposition  of  the  Court,  and  to  have  been  cases  where  the  de- 
fendants had  received  benefit,  to  a  very  considerable  extent,  from 
the  execution  of  the  contract  by  the  plaintiffs  ;  but  the  Court  nev- 
ertheless maintained  the  doctrine  that  damages  could  not  be  given 
at  law  for  the  non-performance  of  a  contract  to  convey  lands,  which 
was  not  in  writing ;  and  that  it  would  not  avail,  though  a  part- 
performance  was  shown,  even  if  it  appeared  that  the  party  was 
remediless,  if  he  could  not  resort  to  his  action."  ^ 

5.  It  will  be  presently  seen,  that  a  different  rule  prevails  in 
equity,  even  with  reference  to  jwar^-performance  of  a  verbal  contract. 
A  fortiori,  it  is  held,  that,  in  equity,  a  full,  substantial  performance 
on  both  sides  will,  as  to  both  parties,  take  the  case  out  of  the  stat- 
ute, notwithstanding  any  legal  defect  or  informality.^  Where 
there  has  been  a  full  performance,  together  with  a  delivery  and 
enjoyment  of  possession  from  the  time  when  the  contract  was  made, 
the  vendee  will  be  regarded  as  owner,  and  entitled  to  a  decree  for 
specific  performance,  by  the  vendor,  if  living,  and  his  heirs  or  de- 
visees, if  dead.^  So  a  suit  in  equity  may  be  maintained,  to  enforce 
specific  performance  of  an  oral  agreement  for  the  exchange  of  real 
property,  where  possession  was  taken  by  both  parties,  and  the 
plaintiff  fully  performed  on  his  part,  and  the  fairness  of  the  agree- 
ment is  not  assailed  by  either  party.*  So,  to  an  action  for  goods 
sold,  the  defendant  pleaded,  that  he  was  possessed  of  a  public  house, 
and  it  was  agreed  that,  in  consideration  that  he  would  give  up  pos- 
session, the  plaintiff  would  pay  <£100,  and  discharge  the  debt ;  that 
the  plaintiff  paid  the  ,£100,  and  the  defendant  quitted  the  house. 
The  agreement  was  not  in  writing.  Held,  that,  having  been  exe- 
cuted, it  was  evidence  to  prove  the  plea.^  So,  on  a  parol  agreement 
made  sixty  or  seventy  years  ago,  which  had  been  fully  performed 
on  both  sides,  except  only  the  complete  execution  of  a  deed,  a  spe- 
cific performance  was  decreed.^  So,  as  has  been  seen  (ch.  1), 
where  a  written  agreement  for  the  purchase  of  an  estate  has  been 
executed,  the  purchaser  has  the  estate  in  equity,  and  it  will  pass 
by  his  will,  notwithstanding  a  subsequent  conveyance  of  the  legal 


1  Adams  v.  Townsend,  1  Met.  483,  485.         *  Bennett  v.  Abrams,  41  Barb.  619. 

'^  McCue  V.  Smith,  9  Min.  252;  Kel-         5  Lavery  v.  Turley,  6  Hurl.  &  Nor. 

lums  V.  Richardson,  21  Ark.  137.  239. 

"*  Traphagen   v.  Traphagen,  40  Barb.         ^  Somerville  v.  Trueman,  4  Harr.  & 

537.  McHen.  252. 


CHAP.    IX.]  PART-PERFORMANCE.  141 

estate.^  In  short,  if  a  parol  agreement  lias  been  executed  on 
one  part,  and  an  enjoyment  had  accordingly,  eijuity  will  not 
destroy  or  avoid  it.^  The  Statute  of  Frauds  in  such  case  is  no 
defence.^ 

6.  The  same  general  principle  has  heen  still  further  extended,  so 
as  to  apply  not  merely  to  a  complete  thougli  informal  performance, 
but  also  to  a  mere  part-performance  ;  and  the  prevailing  rule  in 
Courts  of  Equity  is,  that,  although  a  contract  for  the  sale  and  pur- 
chase of  lands  is  void  or  voidable,  under  the  Statute  of  Fraiids,  or, 
as  it  is  sometimes  expressed,  the  statute  allows  no  action  to  be 
brought  upon  it,  for  want  of  a  writing  signed  by  the  party  to 
be  charged,  yet,  where  the  purchaser  takes  possession  in  pursuance 
of  such  agreement,  and  with  the  vendor's  assent,  the  Court  will 
decree  an  execution  of  the  contract ;  more  especially  wliere  the 
land  has  been  sold  in  part,  and  the  money  divided  and  invested  ;  or 
where  he  has  made  improvements  on  the  land  occupied  without 
interruption,  and  where  the  vendor  has  often  recognized  the  sale, 
and  the  purchase-money  has  been  paid.'^(a)  The  distinction  is 
made,  that  the  vendee  not  in  possession  cannot  recover  possession 
by  suit ;  but  the  vendee  in  possession  will  not  be  ousted  on  the 
ground  of  a  void  contract ;  the  statute  cannot  be  taken  advantage 
of  by  the  plaintiff  to  commit  fraud  upon  a  defendant.^  The  Stat- 
ute of  Frauds  was  designed  to  exclude  oral  evidence  of  the  agree- 
ment of  sale ;  not  oral  evidence  of  the  acts  of  part-performance,  or 

1  Rose  V.  Cunynghame,  11  Ves.  550.  kin  v.  Johnson,  27  Geo.  485;  Massey  v. 

2  Lockey  V.  Lockey,  Free.  Cha.  518.  M'llwain,    2    Hill,    Ch.    426;    Moore   v. 

3  Aylesford's  case,  2  Stra.  783;  Pawle  Beasley,  3  Ham.  (Ohio),  294;  Wilber  v. 
V.  Gunn,  4  Bing.  N.  445.  Pain,  1  Ibid.  251 ;  Shirley  v.  Spencer,  4 

4  Williston  V.  Williston,  41  Barb.  635 ;  Gilra.  583  ;  Keats  v.  Rector,  1  Ark.  391  ; 

8  Met.  (Ky.),  578;  Clerk  i'.  Wright,  lAtk.  Thornton  v.  Henry,  2  Scam.  210;  Wet- 
12 ;  Knight  v.  Knight,  28  Geo.  165  ;  Gun-  more  v.  White,  2  Caines'  Gas.  87 ;  Ellis 
ter  V.  Halsey,  Ambl.  586 ;  Newton  v.  v.  Ellis,  1  Dev.  Eq.  180  ;  Tibbs  v.  Barker, 
Swazey,  8  N.H.  9,  13  ;  Tilton  v.  Tilton,  1  Black.  58  ;  Ashmore  v.  Evans,  3  Stockt. 

9  N.H.  386,  390;  Brock  i-.  Cook,  3  For-  151 ;  Baldwin  y.  Thompson,  15  Iowa,  504  ; 
ter,  464 ;  Scott  v.  Newsom,  27  Geo.  125 ;     Daniels  v.  Lewis,  16  Wis.  140. 

Annan  r.  Merritt,  13  Conn.  479  ;  Lump-         &  Hiirrow  u.  Johnson,  3  Met.  (Ky.),  578. 

(a)  While  payment  of  the  price  may  13  Gray,  3.  It  is  held,  that,  where  a  sale 
take  a  case  out  of  the  statute,  the  statute  of  real  estate  has  been  executed  on  one 
will  not  prevent  a  vendor  from  setting  up  side  by  a  conveyance,  the  pr()])er  action 
in  defence  to  an  action  upon  a  debt,  that  for  the  price  is  upon  an  imi)lied  promise 
it  was  agreed  to  be  paid  by  a  conveyance  arising  from  the  ])laintiff"s  perforuiance, 
of  the  land.  Thus  no  action  lies  to  recover  implied  promises  not  being  emliraced  by 
the  price  of  work  which  was  performed  in  the  statute  ;  but  no  action  can  be  main- 
payment  for  land  under  a  verbal  contract ;  tained  on  the  special  contract  itself.  Fish- 
the  defendants  being  ready  to  comply  er  v.  Wilson,  18  Ind.  133. 
with  their  agreement.    Congdonr.  Ferry, 


142  LAW   OF   VENDORS    AND    PURCHASERS.  [CHAP.   IX. 

things  done  in  execution  of  the  agreement.^(a)  Part-performance 
has  no  other  effect,  except  that  the  plaintiff  is  thereby  let  in  to 
prove  the  agreement  alninde,  where  it  is  not  confessed.^  When  a 
fair,  honest,  verbal  agreement,  for  the  sale  of  land,  is  alleged  in 
a  bill  and  admitted  in  the  answer,  or  when  it  appears  clearly  that 
such  an  agreement  has  been  made,  and  has  been  performed  on  one 
part,  or  something  has  been  done  in  pursuance  of  it,  the  Court  of 
Chancery  will  decree  a  conveyance  immediately,  or  on  the  proper 
terms. ^  And  where  there  are  several  parcels  sold  by  one  parol 
contract,  it  suffices  if  the  vendee  pays  the  price  and  goes  into  pos- 
session of  one  parcel  only.*  So  the  complainant's  bill  alleged  a 
contract  for  the  whole  of  a  square  of  ground,  payment  of  the  pur- 
chase-money, and  possession  under  the  contract.  The  answer 
denied  the  contract  as  to  the  whole  square,  but  admitted  it  as  to 
a  part ;  and  also  denied  payment  of  the  purchase-money,  and 
possession  of  the  whole  square.  Decreed,  that,  on  payment  of  the 
whole  purchase-money  and  interest,  the  defendant  should  convey 
the  part  of  the  square.^  So,  that,  for  seven  years  before  the  trial, 
the  land,  with  the  plaintiff's  consent,  was  assessed  to  the  defendant, 
and  that  the  plaintiff  acknowledged  that  he  had  given  possession 
to  the  defendant,  is  sufficient  to  justify  the  jury  in  finding  that 
possession  was  delivered  in  pursuance  of  the  contract,  and  to  take 
the  case  out  of  the  statute.*^  So  a  son,  residing  in  the  family  of 
his  father,  who  was  the  tenant  of  the  premises,  purchased,  by 
parol,  a  portion  of  the  lot,  built  thereon  a  house,  and  moved  into 
it  with  his  family,  but  erected  no  partition  fence  between  himself 
and  his  father.  Held  sufficient,  as  against  the  vendor,  to  take 
the  case  out  of  the  statute.^  So  a  purchaser  under  a  verbal 
contract,  who  has  made  a  partial  payment  and  has  entered  into 
possession  by  consent  of  the  vendor,  may  lawfully  sever  timber,  or 
peel  bark  from  the  trees ;  and  such  timber  and  bark,  when  so  sev- 
ered, become  the  property  of  the  purchaser,  and  subject  to  attach- 

1  Hall  V.  Hall,  1  Gill,  383.  5  Graham  v.  Yeates,  6  Harr.  &  John. 

■^  Thompson  v.  Tod,  1  Peters  C.C.  388.  229. 

3  Simmons  v.  Hill,  4  Harr.  &  M'Hen.  •>  Miranville   v.  Silyerthorn,  1   Grant, 

252.  410. 

•*  Smith  V.  Underdunck,  1  Sandf.  579.         ''  Zimmerman  v.  Wengert,  31   Penn. 

581.  '  401. 

(rt)  But  the  mere  declarations  of  the  essential   attributes   of  part-performance, 

vendee  that  he  had  purchased  the  land,  They  are  merely  parol  evidence  of  the 

and  was   the   owner,  unaccompanied   by  agreement.    Anderson  v.  Chick,  1  Bailey, 

any  act  in  pursuance  of  them,  want  all  the  Eq.  118,  124. 


CHAP.    IX.] 


PART-PERFORMANCE. 


143 


ment  and  execution.^  So  where  a  parol  contract  is  made  for  the 
sale  of  two  parcels  of  land  for  a  gross  price,  and  the  vendor,  at  the 
time  appointed,  convcj^s  one  only,  and  agrees  to  convey  the  other 
presently ;  and  the  vendee  pays  the  whole  price,  and  enters  into 
possession  of  both  on  receiving  the  deed :  the  contract  is  not 
merged  in  such  deed,  nor  varied  by  the  vendee's  assent  to  the 
delay,  as  to  the  other  parcel.  So  the  agreement  to  give  a  deed  of 
the  latter  is  not  a  new  parol  contract,  or  a  substitute  for  the  first 
agreement ;  but  the  conveyance  is  a  part-performance  of  the  origi- 
nal contract.^(a) 


.     1  Pike    V.   Morey,   32    Vt.   37. 
Wright  V.  Schneider,  14  Ind.  527. 


See         2  Smith  v.  Underdunck,  1  Sandf.  579. 


(a)  Tlie  princii)le  has  been  applied  to 
leases.  Where  a  contract  under  the 
(Cal.)  act  of  March  21,  1856,  authorizing 
a  lease  of  prison  grounds,  &c.,  at  a  rate 
not  exceeding  -$15,000  per  month,  stipu- 
lated for  .$10,000  per  month,  and  for  the 
release  of  claims  held  by  the  lessee  against 
the  state  ;  held,  after  three  years  and  part- 
performance  on  both  sides,  this  arrange- 
ment could  not  be  set  up  to  invalidate  the 
contract.    State  v.  INIcCauley,  15  Cal.  429. 

Where,  under  a  parol  agreement  for 
the  use  of  land  for  eight  years,  upon  con- 
dition that  the  tenant  should  clear  up  and 
improve  tlie  same,  such  improvements 
were  made  at  a  cost  exceeding  the  yearly 
rent ;  held,  there  was  such  part-perform- 
ance of  the  contract  as  to  take  it  out 
of  the  statute,  and  that  the  tenant  was 
entitled  in  equity  to  a  decree  for  specific 
performance  of  tlie  lease  for  eight  years. 
Morrison  v.  Peay,  21  Ark.  110. 

Before  1857,  the  occupants  of  lots  on 
Sullivan's  Island  were  mere  tenants  at 
will  of  the  State,  and  had  no  interest  in 
the  land,  so  as  to  render  a  parol  contract 
for  the  sale  of  a  house  on  one  of  the  lots 
void  under  §  4  of  the  Statute  of  Frauds. 
Such  a  contract  was  completed  by  dehv- 
ery  of  the  house,  no  memorandum  in  writ- 
ing being  necessary.  Whetmore  v.  Ilhett, 
12  Rich.  565. 

In  a  complaint  to  foreclose  a  mortgage, 
the  answer  alleged,  by  way  of  cross-com- 
plaint, that,  after  delivery  of  the  mortgage, 
A.  apphed  to  the  mortgagor  to  purchase  a 
certain  tract  of  land,  ottering  a  satisfactory 
price,  provided  he  would  take  a  certain 
lot  at  -S-SOO  in  part-payment,  which  he 
refused  to  do,  and  declined  the  offer  ;  that 
the  plaintiff  thereupon  agreed  with  the 
mortgagor,  that,  if  he  would  accept  the 
offer,  and  take  the  lot  at  8300,  he  would 
purcliase  and  take  a  conveyance  thereof 


from  the  defendant  at  §300,  and  credit  that 
sum  upon  the  mortgage  note  ;  whereby  the 
defendant  was  induced  to  sell  his  land  at 
the  price  offered,  and  to  take  a  conveyance 
of  the  lot,  and  he  immediately  tendered  a 
conveyance  thereof  to  the  plaintiff,  and 
asked  that  the  credit  be  made  upon  his 
note,  wliicli  was  refused.  Held,  the  agree- 
ment was  taken  out  of  the  statute  by  the 
defendant's  part-performance.  Eastburn 
V.  Wheeler,  23  Ind.  305. 

W.  had  obtained  a  judgment  of  fore- 
closure and  sale  against  A.,  the  owner  of 
the  equity  of  redemption.  A.  was  about 
to  appeal  from  the  judgment,  and  stay 
the  sale,  which  he  was  induced  not  to  do, 
by  reason,  and  upon  tlie  faith,  of  a  verbal 
agreement  made  by  the  attorney  of  \V., 
that  the  sale  should  take  place,  and  the 
property  be  bid  off  by  W.,  and  that  he 
would  convey  the  same  to  B.  upon  certain 
conditions,  including  the  payment  of  the 
judgment,  with  interest  and  costs,  which 
agreement  was  to  be  reiluced  to  writing 
after  the  sale.  W.  acquired  the  property 
at  such  sale,  but  refused  to  sign  or  per- 
form such  agreement,  and  denied  the 
authority  of  his  attorney  to  make  it. 
Held,  the  relinquishment  of  further  liti- 
gation, and  omitting  to  staj'  the  sale, 
were  such  acts  of  part  -  performance  as 
would  take  the  agreement  out  of  the 
statute ;  and  that  W.  could  not  adopt  the 
act  of  his  attorney  so  far  as  to  hold  the 
title  acquireil  at  such  sale,  and  repudiate 
as  unauthorized  the  agreement  bj^  which 
the  sale  was  allowed  to  take  place.  I'aine 
V.  Wilcox,  16  Wis.  202. 

A.  entered  into  possession  of  land 
under  a  contract  to  purchase,  and  after- 
wards made  a  parol  agreement  with  B., 
by  which  the  latter  was  to  advance  the 
purchase-money,  take  an  absolute  deed  of 
the  premises,  to  be  procured  by  A.,  and 


144  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    IX. 

7.  With  regard  to  the  party  who  may  avail  liimself  of  part-per- 
formance, it  is  held,  that  after  delivery  of  possession,  in  pursuance 
of  a  parol  contract,  the  vendee  as  well  as  the  vendor  may  insist 
on  a  specific  execution  of  the  contract.^  But,  on  the  other  hand, 
part-performance  is  not  ground  for  holding  a  party  who  has  done 
the  acts  to  his  own  prejudice,  unless  they  are  also  a  prejudice  to 
the  plaintiff;  because  the  doctrine  of  part-performance  is  founded 
on  fraud.~(a) 

.  8.  Acts  merely  introductory  or  ancillary  will  not  constitute  part- 
performance,  though  attended  with  expense.  As,  for  example, 
delivery  of  an  abstract,  giving  directions  for  conveyances,  going  to 
view  the  estate,  fixing  upon  an  appraiser,  making  valuations,  &c.^ 
Thus  where  one  who  had  verbally  agreed  for  the  purchase  of  an 
estate,  in  confidence  thereof  gave  orders  for  conveyances  to  be 
drawn,  and  went  several  times  to  view  the  estate ;  held,  the  Court 
would  not  carry  such  agreement  into  execution,  but  the  Statute  of 
Frauds  might  be  pleaded  to  a  bill  brought  for  that  purpose.^  So  in 
case  of  a  parol  agreement,  that,  upon  the  plaintiff's  procuring 
a  release  from  a  third  person,  the  defendant  would  convey ;  the 
plaintiff's  procuring  a  release  for  valuable  consideration  is  not  a 
part-performance.^  Nor  putting  a  deed  into  the  hands  of  a 
solicitor,  to  prepare  a  conveyance.^  So  where  a  bill  was  filed  for 
specific  performance  of  a  sale  of  land,  alleging  that  A.  gave  the 
land  into  B.'s  possession  in  payment  of  a  debt ;  that  B.  sold  it  to 
C,  and  C.  to  D.,  and  D.  to  the  complainant;  and  the  answer  denied 

1  Pug:h  V.  Good,  3  W.  &  S.  56.  Whaley  v.  Bagenal,  6  Bro.  P.   C.  645 ; 

2  Buckmaster  v.  Harrop,  7  Ves.  341 ;  Whitbread  v.  Brockliurst,  1  Bro.  412. 
Popham  V.  Eyre,  Lofll,  786  ;  Hawkins  v.  *  Clerk  v.  Wright,  1  Atk.  12. 
Hunt,  14  111.  42.  5  O'Reilly  v.  Thompson,  2  Cox,  271. 

3  Whitchurch  v.   Bevis,  2  Bro.  559 ;         ^  Eedding  v.  Wilkes,  3  Bro.  C.  C.  400. 

give  the  latter  a  written  contract  to  con-  resentatives  in  case  of  his  death.  1  Sugd. 
vey  the  land  to  him,  on  his  payment  of  174.  See  Burkett  v.  llandall,  3  Mer.  466. 
the  money  advanced  and  interest.  B.,  But  a  strong  doubt  has  been  suggested, 
after  advancing  the  purchase-money,  and  whether  a  remainder  -  man  would  be 
receiving  sucli  absolute  deed,  refused  to  bound  in  consequence  of  part-performance 
give  A.  such  written  contract  to  convey,  by  the  particular  tenant,  inasmuch  as  the 
Held,  that  he  could  not  maintain  an  ac-  doctrine  proceeds  upon  the  ground  of 
tion  of  ejectment  against  A.,  to  recover  fraud,  which  is  a  personal  matter.  Shan- 
possession  of  the  premises,  and  that  the  non  v.  Bradstreet,  1  Sch.  &  he^.  52. 
parol  agreement  to  give  a  written  con-  In  a  very  late  case  it  is  held,  that  a 
tract  of  conveyance  was  not  void  by  the  vendor  cannot  enforce  the  agreement,  not- 
Statute  of  Frauds.  McBurney  v.  Well-  withstanding  part  -  performance  by  the 
man,  42  Barb.  390.  vendee,  nor  though  the  vendee  confess 
(a)  It  is  said  that  a  parol  agreement,  the  agreement.  Luckett  v.  Williamson, 
which  by  reason  of  part-execution  binds  37  Mis.  388. 
the  party  himself,  will  also  bind  his  rep- 


CHAP.    IX.]  PART-PERFORMANCE.  145 

the  contract  and  sale,  and  pleaded  tlie  Statute  of  Frauds  ;  and  the 
testimony  showed  a  verbal  agreement  of  A.  to  give  the  land  to  B. ; 
that  he  tokl  liim  to  take  possession  ;  that  B.  walked  over  the  hind, 
and  offered  it  for  sale  ;  and  that  it  was  sold  as  alleged  in  the  bill, 
and  the  land  was  unenclosed  at  the  time :  such  contract  was  held 
wdthin  the  statute,  and  not  to  be  enforced  without  evidence  of 
some  act  done  in  part-performance  of  it.^  So  a  tender,  by  the 
vendor,  of  a  sufficient  deed  to  the  vendee,  who  refuses  to  accept  it, 
will  not  enable  the  vendor  to  recover  in  assumpsit  for  the  })ricc.^ 
And  possession,  when  set  up  as  an  act  of  part-performance,  must 
be  unequivocally,  directly,  and  solely  referable  to  tlie  identical 
agreement  alleged  in  the  bill.  It  must  be  either  delivered  by, 
or  taken  with  the  express  or  implied  consent  of,  the  vendor.  If 
otherwise  obtained,  it  cannot  avail.  Where  no  other  title  to  pos- 
session, and  no  other  origin  of  it,  is  proved,  it  is  primd  facie  to  be 
referred  to  the  agreement.  But,  if  the  vendor's  assent  to  the  pos- 
session is  denied,  merely  suffering  the  party  to  occupy  for  a  few 
months,  without  turning  him  out,  when  the  property  was  of  trifling 
value  as  to  profits,  and  no  improvements  were  put  upon  it,  is  not 
sufficient.^  So,  if  a  tenant  buys  the  estate  and  remains  in  posses- 
sion, this  is  no  part-performance.^  So  a  contract  for  the  transfer  of 
a  lease  cannot  be  taken  out  of  the  statute  by  a  partial  performance 
of  the  lease.°(a) 

1  Prostburg,  &c.,  Co.  v.  Thistle,  20  Md.  1  M'C.   Ch.  32  ;   Carlisle  v.  Fleming,   1 
186.  Harr.  421 ;  Eaton  v.  Wliitaker,  18  Conn. 

2  King  V.  Smith,  33  Vt.  22.  222;    Goodhue  v.   Barnwell,  1   Kice    Eq. 

3  Jervis  v.  Smith,  1  Hotfm.  Ch.  470 ;  I'JS ;  Phillips  v.  Thompson,  1  Johns.  Ch. 
Givens  v.  Calder,   2  Desaus.  171 ;    Hord  131 ;  Blakeney  v.  Ferguson,  3  Eng.  372. 
V.    BowmaH,   1  Freem.   Ch.  290;    Smith  *  Mahana  w.  Blunt,  20  Iowa,  142. 

t'.   Underdunck,    1   Sandf.   579 ;    Lord   v.  5  Hunt  v.  Coe,  15  Iowa,  197. 

Underdunck,  ib.  46 ;   Thompson  v.  Scott, 

[a]  The  plaintiff,  the  widow  of  A.,  and  contract  to  make  a  will.    Lord  Cranworth, 

A.,  who  afterwards  intermarried,  agreed  L.C.,  remarked  :   "  If  I  agree  witli  A.  by 

in  writing,  that  A.  should  have  the  plain-  parol,  witliout  writing,  tliat  I  will  build  a 

tiff's  property  for  life,  paying  her  .£80  per  house  on  my  land,  aiul  then  will  sell  it  to 

annum,  pin-money  ;  after  which  he  should  him  at  a  stipulated  price,  and  in  pursu- 

have  it.     A  settlement  was  prepared  ac-  ance  of  that  agreement  1  build  a  iiouse ; 

cordingly ;  but,  by  agreement,  rescinded;  this  may  aflbrd  me  ground  for  compelling 

A.  agreeing,  as  alleged  by  the   plaintiff,  A.  to  com{)iete  the  purchase;  but  it  cer- 

to  give  her  by  will  aU  his  property.    Such  tainly  would  afford  no  foundation  for  a 

a  will  was  made;  but,  after  his  death,  a  claim  by  xV.  .  .  .  The  nature  of  the  alleged 

later  and  ditierent  one  was  found.     Upon  agreement  was  such  as  hardly  to  admit, 

a  bill  in  equity  against  A.'s  executors,  to  even  on  part  of  the  party  to  be  charged, 

enforce  the  agreement ;    held,  that  part-  of  any  tiling  like  part-pertbrmance.    As  a 

performance  by  A.  did  not  take  tiie  case  will  is  necessarily,  until  the  last  moment 

out  of  the  Statute  of  Frauds ;   that  the  of  life,  revocable,  a  contract  to  make  any 

marriage  was  not  a  part-performance  ;  and  specified  bequest,  even  when  a  will  iiav- 

that  under  the  statute  there  was  no  valid  ing  that  etiect  has  been  duly  prepared  and 

10 


146  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IX. 

9.  If  one  authorized  by  the  vendor  to  deliver  possession  to  the 
vendee  takes  a  lease  from  the  vendee,  and  enters  into  actual  pos- 
session ;  there  is  an  equitable  estate  in  the  lessor,  which  is  bound 
by  a  judgment  against  him.^     So  payment  of  the  purchase-money, 
and  continuance  in  possession  by  the    complainant   for   several 
years,  who,  but  for  the  agreement,  was  a  trespasser,  were  held 
to  take  a  parol  agreement  for  the  sale  of  lands  out  of  the  statute.^ 
So  a  bill  in  chancery  stated,  that  M.  had  a  life-estate  in  all  the 
tract  of  land  called  Oliver's  Neck,  the  remainder  in  fee  being 
in  C. ;  that  C.  sold  to  M.  all  his  interest  in  the  land ;  that  tlie 
purchase-money  was  paid  by  M.,  who  retained  possession  until  his 
death  ;  and  that  his  representatives,  the  complainants,  afterwards 
retained  possession.     The  testimony  did  not  establish  the  claim  as 
stated,  but  proved  a  contract  between  C.  and  M.  for  one-fourth 
part  of  the  tract;  that  the  purchase-money  was  paid  by  M.,  and 
possession  of  the  land  permitted  to  be  retained  by  him  under  the 
contract.     Held,  the  complainants  were  entitled  to  a  conveyance 
of  the  one-fourth ;  that  permitting  the  possession  to  be  retained 
was  equivalent  to  an  actual  delivery,  and,  with  the  payment  of  the 
purchase-money,  took  the  case  out  of  the  statute.^     So  a  mother 
desired  certain  persons  to  bear  witness,  that  she  had  purchased  a 
particular  tract  of  land  for  her  son,  a  minor  ;  and  verbally  agreed 
with  her  brother,  acting  for  the  son,  to  give  him  the  land,  in 
consideration  of  the  son's  relinquishing  his  claim  to  his  father's 
personal  estate.     The  mother  gave  him  possession  of  the  land, 
which  the  son  used  and  improved  as  his  own  until  his  death, 
having  released  his  claim  to  his  father's  personal  estate.     Held, 
the  agreement  should  be  specifically  performed.*     So  where  there 
was  an  agreement  to  convey  to  trustees  for  creditors,  in  considera- 
tion of  an  extension,  the  trustees  took  possession,  and  the  ex- 
tension was  granted.     Held,  the  contract  should  be  specifically 
performed.^    So  upon  a  bill  in  equity  to  compel  performance  of  an 
agreement  to  lease,  it  appeared  that  the  defendant,  having  a  free- 
hold estate  in  land  of  his  wife,  entered,  in  the  fall  of  the  year, 

1  Pugh  V.  Good,  3  W.  &  S.  56.  *  Simmons  v.  Hills,  4  Harr.  &  McH. 

2  Smith  V.  Smith,  1  Rich.  Eq.  130.  252. 

3  Drury  v.  Conner,  6  Harr.  &  John.         5  Moale  v.  Buchanan,  11  Gill  &  John. 
288.  314. 

executed,  is  in  truth  a  contract  of  a  nega-  not  see  how  there  can  be  part-performance 
tive  nature,  —  a  contract  not  to  vary  wliat  of  such  a  contract."  Caton  v.  Caton,  Law 
has  been  so  prepared  and  executed.    I  do    Rep.  (Eng.)  Eq.,  March,  1866,  pp.  137, 147. 


CHAP.    IX.]  PART-PERFORMANCE.  147 

into  a  parol  agreement  with  tlie  j)laiutitr,  tliat  ho  would  erect  upon 
the  land  a  substantial  brick  store,  and  have  it  completed  by  the 
first  day  of  April  then  next ;  and  that  he  would  let  such  store 
to  the  plaintiff  for  three  years,  for  the  yearly  rent  of  -$500,  to 
be  paid  quarterly.  He  erected  such  store,  and  the  plaintiff  im- 
mediately took  possession,  and  occupied  for  one  year,  paying  the 
rent  quarterly.  During  the  year,  the  defendant  gave  the  plaintiff 
notice  to  quit,  and  brought  a  summary  process  to  eject  him. 
Held,  1.  That  the  agreement  was  within  that  clause  of  the  statute 
which  relates  to  the  sale  of  lands,  &c. ;  2.  That  there  was  a  part- 
performance,  sufficient  to  take  the  case  out  of  the  statute,  and  au- 
thorize a  decree  for  specific  performance.  The  plaintiff,  after  the 
erection  of  the  store,  and  before  the  commencement  of"  the  suit, 
offered  to  the  defendant  a  writing  in  the  form  of  a  lease,  to  be  ex- 
ecuted by  him,  providing,  that  if  the  store  should  be  destroyed  by 
fire,  or  rendered  unfit  for  use,  the  payment  of  rent  should  cease, 
until  it  should  be  put  in  good  order  by  the  defendant.  The  de- 
fendant refused  to  execute  such  lease,  or  even  to  read  it,  saying, 
"  I  have  no  lease  to  execute."  Held,  1.  He  was  not  bound  to 
execute  the  lease  offered,  or  any  lease  containing  such  a  provision  ; 
but,  2.  This  did  not  excuse  him  from  executing  a  lease  with  the 
usual  provisions.^  So  G.  and  W.,  brothers,  being  jointly  in- 
terested in  the  real  estate  of  their  father,  a-s  tenants  in  comijion, 
G.  agreed  to  relinquish  his  interest,  in  exchange  for  a  quantity  of 
medicines,  and  the  good-will  of  his  brother's  business  as  a  phy- 
sician ;  in  consequence  of  which  agreement,  W.  took  possession 
of  the  real  estate,  made  improvements,  and  afterwards  sold  the 
same  to  T.,  who  also  made  valuable  improvements.'  Held,  this 
was  sufficient,  in  equity,  to  take  the  case  out  of  the  statute,  and  T. 
was  entitled  to  a  conveyance  of  G.'s  interest,  and  to  a  perpetual 
injunction  against  a  suit  which  had  been  instituted  by  G.  for  the 
recovery  of  the  premises.^ 

10.  But,  upon  a  bill  for  specific  performance,  it  appeared  that 
the  plaintifl",  through  whose  land  the  defendants,  a  railroad  corpo- 
ration, were  authorized  to  make  their  road,  gave  them  a  bond 
to  convey  to  them  by  a  certain  day,  on  payment  of  a  certain  price, 
so  much  of  his  land  as  should  be  taken  by  them  by  authority  of 

1  Eaton  V.  Whitaker,  18  Conn.  222.  Moreland  v.  Lemasters,  4  Blackf.   383  ; 

2  Town  V.  Needham,  3  Paige,  545;  Byrd  v.  Odem,  9  Ala.  756;  Finucane  v. 
Wetmore  v.  White,  2  Caines'  Cas.  87 ;     Kearney,  1  Freera.  65,  69. 


148  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    IX. 

law  for  their  road.  The  defendants,  within  the  time  allowed  by 
law,  entered  upon  and  took  the  land,  hut,  upon  the  plaintiff's 
tendering  them  a  deed  on  the  day  appointed,  refused  to  pay  the 
price.  Held,  the  bill  could  not  be  maintained,  the  defendants  not 
having  signed  any  written  agreement.  Bigelow,  J.,  says:  "It 
does  not  appear  that  the  defendants  took  possession  of  the  land 
under  the  contract.  They  had  the  right,  under  their  acts  of 
incorporation,  and  the  general  statutes  of  the  Commonwealth, 
to  enter  upon  the  land  of  the  plaintiff  and  construct  their  railroad 
over  it,  without  any  contract,  and  even  against  the  consent  of  the 
owners.  For  aught  that  appears  in  this  case,  all  the  acts  of  the 
defendants,  relied  on  as  showing  part-performance  of  the  contract, 
were  done  under  the  rights  and  powers  conferred  on  them  by 
statute,  and  not  in  pursuance  of  the  contract."  ^ 

11.  With  what  degree  of  distinctness  and  certainty  the  terms  of 
the  contract  itself  are  to  be  shown,  in  order  to  sustain  a  claim 
upon  the  ground  of  part-performance,  has  been  matter  of  some- 
what conflicting  decision.  The  prevailing  rule,  however,  appears 
to  be,  that,  to  obtain  specific  performance  of  a  parol  contract 
for  the  sale  of  lands,  it  must  be  clearly,  fully,  and  satisfactorily 
shown  what  the  agreement  was,  and  that  the  plaintiff  has  per- 
formed, or  has  been  and  is  able  and  willing  to  perform,  his  part 
of  the  contract.^ 

12.  Equity  decrees  the  specific  execution  of  a  parol  agreement, 
after  a  parf>performance,  and  notwithstanding  the  express  provis- 
ions of  the  Statute  of  Frauds,  on  the  ground  o^  fraud,  in  refusing 
to  perform,  after  performance  by  the  other  party,  and  to  prevent 
the  statute  from  being  an  engine  of  that  fraud  which  it  was  en- 
acted to  prevent.^  This  principle  is  perhaps  best  illustrated  by 
that  somewhat  numerous  class  of  cases,  involving  a  breach  of  trust, 
where  a  legal  title  is  conveyed  to  one  person,  by  whom  the  consid- 
eration is  paid,  but  for  the  benefit  of  another,  to  whom  the  nominal 
purchaser  verbally   agrees   to   transfer   the    estate,   upon    being 


1  Jacobs  V.  Peterborough,  &c.,  8  Cush.  2  Ves.  243 ;  5  Vin.  Abr.  523,  pi.  40.    See 

223,  224.  also  Allen  v.  Bower,  3  Bro.  149 ;  Clinan 

''!  Thompson  v.  Scott,  1  M'C.  Ch.  32;  v.   Cooke,   1   Scho.  &  L.  22;   Muudy  v. 

Hall   V.   Hall,   1   Gill,  383;  6  Ves.  470;  Jolitfe,  9  Sun.  413. 

Symondson   v.    Tweed,    Prec.    Ch.    374 ;  3  Maryland,  &c.  v.  Schroeder,  8  Gill  & 

Forster  v.  Hale,  3  Ves.   712;    Savage  v.  John.  94;  Caton  y.  Caton,  LawRep.  (Eng.) 

Carroll,    1   B.    &   Be.   2G5 ;   Reynolds  v.  Eq.,  March,  18G6,  p.  147. 
"Waring,  You.  346  ;  Mortimer  v.  Orchard, 


CHAP.    IX.]  PART-PERFORMANCE.  149 

re-imbursed  the  sum  paid  out. (a)  And  in  this  instance,  as  well 
as  others  of  the  same  general  nature,  it  is  held,  that,  where  a 
party  has  paid  money  upon  a  contract  within  the  statute,  and 
a  recovery  of  the  money  will  not  restore  him  to  his  former  situa- 
tion, he  is  entitled  to  specific  performance,^  Thus  where  lands 
of  A.  were  sold  under  execution  to  B.,  and  B.  sold  them  to  C,  C. 
having  agreed  verbally  with  A.  that  he  would  purchase  them  of 
B.,  and  retain  them  until  the  rents  and  profits  should  pay  the 
redemption-money  ;  held,  the  agreement  was  not  within  the  statute, 
being  a  mere  extension  of  the  time  of  redem})tion,^  So,  where  A. 
obtained  the  legal  title  to  land,  as  security  for  the  money  advanced 
by  him  to  B.,  the  vendor,  for  C,  the  vendee,  promising  to  reconvey 
the  same  to  C,  on  repayment  of  the  sum  so  advanced,  with  20 
per  cent  interest,  but  fraudulently  sold  the  land  to  the  defendant, 
who  bought  with  notice ;  held,  the  contract  was  not  void  under 
the  statute,  but  equity  would  adjudge  the  defendants  trustees  for 
the  party  defrauded,  and  decree  specific  performance,  or  pecuniary 
compensation.^  So  A.'s  farm  being  about  to  be  sold,  on  a  decree 
of  foreclosure,  for  a  debt  of  $430,  he  applied  to  B.  to  advance 
that  sum,  to  save  the  farm  to  A. ;  and  it  was  agreed  between 
them,  verbally,  that  B.  should  become  the  purchaser,  and  hold  the 
premises  as  security  for  the  advance.  B.  accordingly  became 
the  purchaser  for  $680,  received  a  deed  from  the  Master,  and  paid 
the  $430  due  the  mortgagee,  and  no  more.  Held,  the  agreement 
was  within  the  statute ;  that  B.  was  entitled  to  hold  the  land  for 
his  own  benefit,  but  was  bound  to  pay  to  A.  the  residue  of  the 
$680,  after  paying  off  the  mortgage.'*(5)  So,  upon  a  bill  for  in- 
junction, it  appeared  that  the  defendant  agreed,  by  parol,  with  his 
brother,  who  was  infirm,  and  whose  land  was  about  to  be  sold  on 
execution,  to  purchase  the  land  for  the  brother's  benefit,  and  as  a 
home  for  his  family,  and  to  give  him  the  benefit  of  the  purchase, 
when  he  should  refund  the  money.  Tlie  defendant  announced  the 
agreement  at  the  sale,  bid  off  the  land  for  a  nominal  price,  and 

*  Malins  v.  Brown,  4  Comst.  403.  '^  Jackson  v.  Gray,  9  Geo.  77. 

2  Griffin  v.  Coflfey,  9  B.  Mon.  452.  i  Bander  v.  Snyder,  5  Barb.  63. 

(a)  See  Trust.  so,  and  afterwards,  B.  failing  to  redeem, 

{/))  But  where  A.  agreed  witli  B.  by  A.  sold  the  farm  for  a  greater  sum  than 

parol,  at  B.'s  request,  to  attend  a  sale  of  he  paid  for  it :  held,  in  an  action  by  B. 

B.'s  farm  under  a  decree  of  foreclosure,  against  A.  to  recover  tlie  surplus,  that  tlie 

purchase  the  same  in  his  own  name,  and  agreement  was  void,   being   contrary  to 

give  B.  two  weeks  to  redeem  ;  and  A.  did  the  statute.    Latluop  v.  Iloyt,  7  Barb.  59. 


150  LAW    OF   VENDORS   AND   PURCHASERS.  [CHAP.    IX. 

paid  it.  The  brother  remained  in  possession  till  his  death,  when 
the  plaintiff,  his  widow  and  heir,  occupied  the  land.  The  defend- 
ant then  took  a  deed  from  the  sheriff,  and  brought  an  action  at 
law  to  dispossess  the  plaintiff.  Held,  the  defendant's  conduct  was 
fraudulent,  and  the  Statute  of  Frauds  was  no  defence  against  the 
plaintiff's  claim  to  have  the  deed  cancelled.i(a)  So  A.  agreed 
to  purchase  land  of  B.,  on  condition  that  a  mortgage  on  the 
same  land  and  other  lands,  held  Ijy  C,  should  be  discharged  from 
the  land,  and  it  was  thereupon  verbally  agreed  between  A.,  B.,  and 
C,  that  a  part  of  the  consideration  should  be  paid  on  the  mortgage 
to  C,  who  should,  at  the  same  time,  execute  a  release  of  that  part 
of  the  premises.  The  purchase  was  accordingly  completed,  A. 
paying  the  money,  of  which  C.  received  the  sum  agreed  on  ;  but  C. 
excused  himself  from  executing  the  release  at  that  time,  saying 
that  he  would  give  it  at  any  time  when  called  upon.  Held,  A., 
notwithstanding  the  statute,  was  entitled  to  a  specific  perform- 
ance of  the  agreement  to  execute  the  release.^  So  A.  and  B. 
obtained  the  legal  title  to  land  for  a  small  sum  advanced  to  C, 
not  being  a  fourth  part  of  the  value  of  the  land ;  promising 
verbally  to  reconvey  to  C,  on  repayment  of  the  sum  advanced, 
with  interest ;  and  afterwards  fraudulently  reconveyed  the  land  to 
a  hond-fide  purchaser.  Held,  a  demurrer,  insisting  on  the  statute, 
should  be  overruled,  the  statute  being  made  to  prevent  fraud,  not 
to  protect  it ;  and  that  A.  and  B.  should  be  holden  as  trustees 
of  C,  for  the  value  of  the  land,  beyond  the  sum  advanced,  and  in- 
terest.^ So  where  A.  and  B.  agree  to  furnish  money  to  enter  land, 
each  one-half;  A.  to  enter  in  his  own  name  and  convey  a  part  to 
B. ;    and   possession   is  taken :   the   Statute  of  Frauds  does  not 

apply.* 

12  a.  Upon  the  ground  last  stated,  that  the  principle  of  part- 
performance  rests  on  fraud;  the  payment  of  motiey,  more  especially 
of  only  part  of  the  price,  cannot,  in  general,  be  regarded  as  a 
sufficient  part-performance.     In  such  case  non-performance  would 

1  Cox  V.  Cox,  5  Eich.  Eq.  365.  3  Cameron  v.  Ward,  8  Geo.  245. 

2  Malins  v.  Brown,  4  Comst.  403.  *  Nelson  v.  "Worrall,  20  Iowa,  470. 

(a)   Upon  a  somewhat  similar  ground,  the  conveyances,  the  purchaser  obtained 

a  party  cannot  avoid  the  effect  of  part-  an  assignment  of  a  mortgage  upon  the 

performance  by  buying  in  a  prior  title,  estate,  antedated  it,  and  refused  to  go  on 

Thus  a  public  survey  was  held  for  sale  with    the    purchase.      Held,   though   the 

of  an  estate,  an  offer  for  it  accepted,  con-  agreement  was  parol,  yet  it  was  binding, 

veyances  ordered,  and  possession  deliv-  Pyke  v.  Williams,  2  Vern.  465. 
ered.    But,  disputes  arising  about  settling 


CHAP.    IX.] 


PART-PERFORMANCE. 


151 


not  operate  a  fraud  upon  the  party,  because  the  money  may  be 
recovered  back.^(rt) 

13.  And  payment  of  the  auction  duty  is  not  a  part-i)erformance, 
taking  an  agreement  out  of  the  Statute  of  Frauds,  because  the 
revenue  laws  would  thus  be  made  to  operate  beyond  their  direct 
and  immediate  purpose.^  So  part-performance  cannot  consist  in 
payment,  by  a  mortgagor,  of  incumbrances  on  the  land  agreed  to 
be  conveyed  to  the  mortgagee.^  So  the  defendant  paid  to  an  auc- 
tioneer, an  agent  for  the  plaintiff,  a  vendor,  £50  "  as  a  deposit  and 
part-payment  of  XI, 000,"  for  the  pnrchase  of  hereditaments,  taking 
a  receipt ;  "  the  terms  to  be  expressed  in  an  agreement  to  be  signed 


1  Campbell  v.  Campbell,  3  Stockt. 
268;  Hatcher  v.  Hatcher,  1  McMul.  Eq. 
311  ;  Jackson  v.  Curtwright,  5  Munf. 
308  ;  Sites  v.  Keller,  6  Ham.  (Ohio),  207  ; 
Pollard  V.  Kinner,  ib.  231 ;  Allen  ?'. 
Booker,  2  Stewart,  21 ;  JMeredith  v.  Naish, 
3  Stewart,  207 ;  Barickman  v.  Kuyken- 
dall,  6  Blackf.  21 ;   M'Kee  v.  PhilUps,  9 


Watts,  85  ;  Parker  v.  Wells,  6  Wharton, 
15o ;  Smith  v.  Smith,  1  Richardson,  Eq. 
130;  Eaton  v.  Wliitaker,  18  Conn.  222; 
Finucane  v.  Kearney,  1  Freem.  Ch.  05 ; 
Hood  V.  Bowman,  ib.  290,  2'J4. 

'^  Buckmaster  v.  Harrop,  7  Ves.  341. 

3  Starin  i-.  Newcomb,  13  Wis.  519.    . 


(a)   In  an  early  case  (Lord  Fingal  v. 

Ross,  2  Eq.  Cas.  Abr.  46,  pi.  12),  Lord- 
Chancellor  Cowper  remarked,  that  the 
clanse  of  the  statute  relating  to  the  sale 
of  goods  expressly  provides  that  payment 
of  earnest  shall  bind  the  bargain  ;  while  it 
declares  that  no  agreement  concerning 
lands  shall  be  good,  unless  reduced  to 
writing.  Ace.  Buckmaster  v.  Harrop,  7 
Ves.  341.  Mr.  Sugden  says  (1  Sugd.  168), 
the  payment  of  a  small  sum  cannot  be 
deemed  a  part-performance.  The  dicta 
are  in  favor  of  a  considerable  sum  being  a 
part-performance ;  but  this  construction 
is  not  authorized  by  the  statute.  He  re- 
fers to  the  judgment  of  Sir  William  Grant, 
in  Butcher  v.  Butcher  (9  Ves.  382),  as 
showing  the  impossibility  of  drawing  any 
such  line  of  distinction  between  the  amounts 
of  purchase-money  paid.  So  in  Buckmas- 
ter V.  Harrop,  7  Ves.  341,  it  is  said,  that, 
whether  one  guinea  or  fifty  guineas  be 
paid,  it  can  make  no  difference.  Ace. 
Cordage  v.  Cole,  1  Saun.  319.  But  in  an 
earlier  case  it  was  held,  that,  thougli  pay- 
ment of  a  substantial  part  of  the  purchase- 
money  will  take  an  agreement  out  of  the 
statute,  paj-ment  of  a  small  part  —  as  five 
guineas,  the  purchase-money  being  one 
hundred  —  will  not  do.  The  plea  of  the 
statute  was  allowed,  with  an  intimation 
from  the  Court,  that,  under  the  circum- 
stances of  the  case,  the  bill  would  be  dis- 
missed with  costs.  Main  r.  Melbourn,  4 
Ves.  720.  A  different  doctrine  from  that 
stated  in  the   text,  has  sometimes   pre- 


vailed ;  and  several  old  cases  have  been 
relied  upon  to  sustain  it.  Feme  i\  Bul- 
lock, Toth.  206  ;  Clark  v.  Hackwell,  ib. 
228;  VoU  v.  Smith,  3  Cha.  Rep.  16; 
Moyl  V.  Home,  Toth.  67 ;  Alsop  v.  Pat- 
ten, 1  Vern.  472  ;  Lacon  v.  Mertin,  3  Atk. 
1 ;  Dickinson  v.  Adams,  4  Ves.  722.  But 
see  William  r.  Nevill,  Toth.  135  ;  Miller 
V.  Blandist,-  ib.  85;  Simmons  v.  Cor- 
nelius, 1  Cha.  Rep.  128;  2  Freem.  128;  1 
Freem.  486,  664,  b ;  Seagood  v.  Meale, 
Prec.  Cha.  560 ;  Coles  v.  Trecothick,  9 
Ves.  234.  One  of  two  joint  lessees  ver- 
bally agreed  to  sell  his  interest  to  the 
other,  and  accepted  a  pair  of  compasses 
in  hand  to  bind  the  bargain.  Whether 
this  is  within  the  Statute  of  Frauds,  qu.  ? 
Alsop  V.  Patten,  1  Vern.  472.  A.  agreed 
with  B.  for  the  purcliase  of  nine  houses, 
mortgaged  to  C,  and  paid  him  a  guinea 
in  earnest.  B.  wrote  a  note  to  C,  desir- 
ing him  to  deliver  up  the  buildings,  he 
having  disposed  of  them,  which  C.  re- 
fused, unless  all  the  mortgage-money  was 
paid,  and  afterwards  purcliased  them  him- 
self. On  a  bill  brought  by  A.  for  specific 
performance,  held,  tliat  neither  the  ear- 
nest nor  the  note,  which  was  only  evi- 
dence of  assent,  but  did  not  ascertain  the 
terms  of  the  agreement,  was  sufficient  to 
take  it  out  of  the  Statute  of  Frauds.  Sea- 
good  V.  Meale,  Prec.  Cha.  560. 

In  a  late  case  it  is  held,  that  payment 
may  be  such  j)art-performance  a.s  to  take 
the  case  out  of  the  statute.  Lingle  v. 
Clemens,  17  Lid.  124. 


152  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IX. 

as  soon  as  prepared."  The  defendant  liad  })reviously  approved  of 
the  draft  of  the  contract,  and,  at  the  time  of  taking  the  receipt, 
agreed  to  sign  the  contract  the  next  day ;  but  refused  to  do  it, 
and  demanded  back  the  deposit.  Held,  the  Statute  of  Frauds  was 
a  good  defence  to  a  bill  for  specific  performance.^  So  the  pur- 
chaser's having  deposited  part  of  the  purchase-money  with  her 
agent,  to  pay  the  vendor  as  soon  as  he  should  execute  the  deeds, 
and  the  agent's  informing  the  vendor  of  it,  are  not  such  a  part- 
performance  as  takes  the  case  out  of  the  statute.^ 

14.  But  where  the  consideration  of  a  verbal  sale  of  land  con- 
sists of  services  to  be  rendered,  which  are  of  so  peculiar  a  charac- 
ter, that  it  is  impossible  to  estimate  their  value  to  the  vendor  by  a 
pecuniary  standard,  and  the  vendor  did  not  intend  so  to  measure 
them ;  the  performance  of  the  services  will  entitle  the  vendee  to  a 
specific  performance.  Thus  an  agreement  was  made  between  two 
brothers,  who  had  always  lived  together  and  owned  their  property 
in  common,  by  which  the  one,  having  a  family,  agreed  to  provide 
for  and  take  care  of  the  other,  who  had  none,  and  who  was  sub- 
ject to  epileptic  fits,  during  his  life,  in  consideration  that  the  for- 
mer should  have  all  the  real  and  personal  estate  of  the  latter. 
Held,  after  performance  of  the  services,  the  contract  should  be 
enforced. 3 

15.  The  principles  above  stated,  with  reference  to  part-perform- 
ance^ seem  to  be  well  established  by  the  weight  of  English  and 
American  authorities.  There  are,  however,  some  qualifications 
and  exceptions,  which  equally  require  to  be  noticed.  Thus,  as  has 
been  already  stated  (§  8),  acts  of  part-i)erformance  of  a  parol 
agreement  will  not  take  it  out  of  the  statute,  unless  they  are 
solely  applicable  to  the  agreement.  Part-performance  must  be 
such  as  to  make  the  party  seeking  to  enforce  an  execution  a 
wrongdoer  by  reason  of  his  acts,  and  complete  performance  a  pro- 
tection against  any  liability.^  Possession  must  be  connected  with 
the  sale,  and  in  consequence  and  pursuance  of  it,  and  intended 
to  be  in  execution  of  it.-^  It  must  have  been  taken  and  held, 
with  the  actual  or  implied  assent  of  the  vendor,  and  by  virtue  of 
the  contract.''     And  it  must  be  exclusive  in  the  vendee.     The  pur- 

1  Wood  V.  Midgeley,  27  Eng.  Law  &  *  Ham  v.  Goodrich,  (N.H.)  Law  Rep. 
Eq  206.  Nov.  1856,  p.  390. 

2  Givens  v.  Calder,  2  Desaus.  171.  ^  McNeill  v.  Jones,  21  Ark.  277  ;  35 

3  Rhodes  v.  Rhodes,  3  Sandford,  279.  Peiin.  305 ;  1  Grant,  406. 

''  CarroUs  v.  Cox,  15  Iowa,  455. 


CHAP.    IX.]  PART-PERFORMANCE.  153 

chaser  of  an  undivided  interest  is  incapable  of  such  possession.^ 
Moreover,  as  we  have  seen,  there  must  be  such  part-performance 
as  cannot  be  compensated  in  damages.^  Upon  these  grounds, 
repairs  made  by  a  tenant  under  his  old  lease,  upon  the  expectation 
of  getting  a  new  one,  form  no  consideration  for  a  promise  to  give  a 
new  lease.^  So  a  mere  continuance  in  possession,  by  a  tenant,  after 
his  purchase,  is  not  sufficient  to  take  the  case  out  of  the  statute.^ 
So  where,  upon  the  faith  of  a  verbal  promise  of  renewal,  a  tenant 
rebuilt  a  party  wall ;  the  agreement  was  held  to  l^e  within  the 
statute  ;  the  act  being  an  equivocal  one,  which  would  lias^e  been 
done  equally  without  any  agreement ;  and,  moreover,  the  landlord 
being  liable  to  an  action  to  recover  back  the  cost,  if  it  was  to  be 
borne  by  him.^  So  the  vendee's  renting  a  part  of  the  land,  as 
agent  of  the  vendor,  will  not  entitle  the  vendor  to  specific  perform- 
ance, as  it  does  not  pui'port  to  be  in  pursuance  and  execution  of 
the  agreement.^  So,  to  constitute  a  valid  parol  sale  under  the 
statute,  the  possession  must  be  exclusive  of  the  vendor,  and  the 
boundaries  distinctly  ascertained.  Thus  A.  entered  under  a  parol 
agreement  with  B.  to  receive  one  hundred  acres,  including  the 
mansion-liouse,  on  one  side  of  a  larger  tract ;  lived  with  B.,  per- 
formed the  consideration,  and  farmed  the  land  in  the  manner  it 
had  been  previously  farmed,  or  with  his  own  and  B.'s  cattle  ;  hav- 
ing also  an  agreement  to  farm  the  whole  of  the  larger  tract  for 
one  year,  for  payment  of  taxes,  and  making  fences.  Held,  within 
the  statute.'' 

15  a.  In  a  late  case  in  Pennsylvania,^  the .  following  remarks 
are  made  upon  a  particular  class  of  cases,  held  not  to  fall  within 
the.  general  doctrine  of  part-performance :  "We  may  notice  still 
another  principle  of  law  that  is  applied  very  beneficially  to  restrain 
the  exceptions  of  the  statute,  and  which  is  of  especial  importance 
in  this  case,  though  its  application  is  not  peculiar  to  cases  under 
this  statute.  We  allude  to  the  law  of  evidence  that  grows  out  of 
the  family  relation.  It  is  so  usual  and  natural  for  children  to 
work  for  their  parents,  even  after  they  arrive  at  age,  that  the  law 

1  Chadwick  v.  Felt,  35  Penn.  305 ;  Wi-  Wills  v.  Stradling,  3  Ves.  378  ;  Savage  v. 
ble  V.  Wible,  1  Grant,  406.  Carroll,  1  B.  &  B.  265. 

2  Postlethwait  v.  Frease,  31  Penn.  472.         5  Frame  v.  Dawson,  14  Ves.  386.    See 

3  Wentworth  v.  Wentworth,  2  INIin.  Lyndsay  v.  Lyncli,  2  Sclio.  &  Lef.  1 ; 
277;  Byrne  v.  Romaine,  2  Edw.  445,  446.  O'Reilly  v.  Thompson,  2  Cox,  271. 

See  Lacon  v.  Mertins,  3  Atk.  1.  6  Anderson  v.  Chick,  Bai.  Eq.  118. 

•4  Spalding  v.  Couzehnan,  30  Mis.  177;  7  Frye  v.  Shepler,  7  Barr,  91. 

Johnston   v.   Glancy,   4   Blackf.'  94,   99  ;         8  Poorman  v.  Kilgorc,   26  Penn.  365. 

Hood  V.  Bowman    1  Freeman    290-294 ;  See  also  Cox  v.  Cox,  ib.  375. 


154  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    IX. 

implies  no  contract  in  such  cases.  And  it  is  so  natural  for  parents 
to  help  their  children  by  giving  them  the  use  of  a  farm  or  house, 
and  then  to  call  it  theirs,  that  no  gift  or  sale  of  the  property  can  be 
inferred  from  such  circumstances.  The  very  nature  of  the  rela- 
tion, therefore,  requires  the  contracts  between  parents  and  children 
to  be  proved  by  a  kind  of  evidence  that  is  very  different  from  that 
which  may  be  sufficient  between  strangers. ^  The  importance  of 
this  rule  is  very  apparent ;  for  it  requires  but  a  glance  over  the 
cases  of  this  class  to  discover  how  sad  has  been  the  experience  of 
the  courts  in  family  disputes,  growing  out  of  the  exceptions  which 
have  been  allowed  to  this  statute ;  and  how  many  and  how  dis- 
tressing must  have  been  the  ruptures  of  the  closest  ties  of  kindred 
that  have  been  produced  and  perpetuated  by  the  encouragement 
thus  given  to  try  the  experiment  of  extracting  legal  obligations  out 
of  acts  of  parental  kindness.  The  delivery  of  possession  is  per- 
fectly accounted  for  by  the  relation  of  the  parties,  and  by  the 
annual  delivery  of  a  share  of  the  produce,  as  a  tenancy  from  year 
to  year,  which  is  allowed  by  the  statute.  If  a  contract  to  farm 
land  on  the  shares,  and  a  delivery  of  possession  under  it,  can  be 
supplemented  by  another  for  an  absolute  grant,  then  certainly,  as 
between  parent  and  child,  delivery  of  possession  becomes  a  worth- 
less protection  against  violations  of  the  statute.  Both  the  terms 
of  this  arrangement,  and  the  possession  under  it,  may  readily  be 
accounted  for  as  founded  on  other  intentions  than  that  of  a  gift 
of  the  land  ;  and  therefore  the  law  forbids  us  to  infer  that  purpose .^ 
Some  reliance  is  placed  upon  the  improvements  made  by  the  de- 
fendant ;  but  having  been  made  without  an  actual  gift,  and  only 
on  the  expectation  or  promise  of  a  gift,  they  do  not  avert  the  rule 
of  the  statute."  ^  So  upon  a  promise  by  a  father  to  one  of  his 
sons,  that,  if  the  latter  would  continue  with  him,  he  would  leave 
him  the  farm  at  his  death,  the  son  cannot  maintain  a  bill  for 
specific  execution  against  the  heirs-at-law  of  the  father,  on  the 
ground  of  performance  by  the  son.^  And  more  especially  in  case 
of  an  agreement  between  father  and  son,  that  if  the  son,  with  his 
family,  would  come  and  live  with  the  father,  and  take  care  of  him 
and  his  farm  during  his  life,  he  would  give  the  son  his  homestead 
farm;  the  father  is  not  bound  to  give  up  possession  during  his 

1  2  Penn.  Rep.  365 ;   8  Barr,  213 ;   9    9  Watts,  42,  109 ;  7  Harris,  469 ;  1  Johns, 
ib.  262 ;    2  Harris,    201 ;  7   ib.  251-366 ;     Ch.  149. 

1  Casey,  808  ;  2  Jones,  175.  3  i  Barr,  379  ;  3  Watts,  138,  255. 

2  3  Ser.  &  11.  546  ;  3  Penn.  R.  365 ;         *  Carlisle  v.  Fleming,  1  Harr.  421,  430. 


CHAP.   IX.]  PART-PERFORMANCE.  155 

life,  sucli  surrender  not  being  necessary  to  a  performance  of  the 
conditions.  The  agreement  merely  binds  the  father  to  give  the 
son  a  title,  either  by  devise  or  by  a  conveyance,  to  take  effect  at 
his  death.  Hence  where  a  bill,  brought  by  the  son  to  enforce  the 
agreement,  set  it  forth  as  above  stated,  held,  the  plaintiff's  posses- 
sion during  the  father's  life  was  not  a  part-performance. (a) 

IG.  A  parol  sale,  upon  which  money  has  been  })aid,  and  posses- 
sion delivered,  is  not  good  against  a  bond-fide  purchaser,  without 
clear  evidence  of  notice  to  him,  either  actual  or  legal.  Legal 
notice  exists  only  where  there  is  a  violent  presumption  of  actual 
notice.  Undisturbed  possession  has  generally  been  considered 
legal  notice  ;  but  it  must  be  clear  and  unequivocal.  Thus  A. 
bought  by  parol  from  B.  a  corner  of  B.'s  tract,  paid  for  it,  was 
put  into  possession,  and  had  buildings  erected  ;  but  there  was  no 
survey  of  the  part,  or  other  admeasurement.  On  B.'s  part  there 
were  a  forge,  dwelling-house,  grist  and  saw  mill,  and  buildings  for 
the  workmen,  which,  with  A.'s  buildings,  might  strike  the  eye  as 
one  establishment.  Held,  the  possession  of  A.  was  not  legal 
notice  of  his  title,  to  a  purchaser  at  sheriff's  sale,  under  a  judg- 
ment against  B,  ;  particularly  if  A.  gave  no  actual  notice  of  his 
title,  when  he  probably  knew  of  tl>e  judgment,  execution,  and 
sale.^ 

IT.  It  requires  to  be  further  stated,  that,  .although  the  general 
doctrine  as  to  part-performance  has  been  for  the  most  part  recog- 
nized, with  other  principles  of  the  English  law,  in  the  United 

1  Billington  v.  Welsh,  5  Binn.  131. 

(a)  A  party  in  possession  under  a  parol  improve  the  land  was  not  a  part-perforni- 
contract  subsequently  purchased  a  defect-  ance,  especially  where  it  was  not  alleged 
ive  outstanding  title,  and,  on  ejectment  that  the  possession  was,  and  was  permit- 
brought  by  his  vendor,  neglected  to  set  up  ted,  in  pursuance  of  the  contract,  and 
his  parol  contract  of  sale,  but  defended  un-  where  the  Court  below  found  that  tliere 
der  such  title  ;  and,  on  a  recovery  against  was  no  proof  of  part-performance.  Went- 
him,  took  a  lease.  Held,  he  had  aban-  worth  v.  Wentworth,  2  jMin.  277. 
doned  his  rights  under  the  contract ;  and  Having  contracted  to  purchase  a  farm, 
a  sheriffs  sale,  under  a  judgment  against  A.  erected  buildings  thereon;  and,  after 
him,  conferred  no  tide,  legal  or  equitable,  thirteen  years'  occupation,  abandoned  the 
upon  the  purchaser.  Zimmerman  v.  Wen-  farm,  which  the  owner  afterwards  sold 
gert,  31  Penn.  401.  and   conveyed   to  B.,   against  whom   A. 

A  party  who  had  settled  on  govern-  brought  trover  for  conversion  of  the  build- 
ment  land,  and  improved  it,  allowed  an-  ings,  B.  liaving  sold  and  conveyed  the 
other  to  enter  it  ut  the  office,  under  an  farm  to  anotlier  person.  Held,  tlie  build- 
agreement  to  convey  it  to  the  settler  on  ings  passed  to  B.  as  a  part  of  the  real 
payment  of  the  purcliase-prico  by  him.  estate,  notwitlistanding  B.'s  grantor  may 
Held,  the  agreement  was  within  tlie  stat-  have  verbally  agreed  witii  A.  that  they 
ute,  and  void,  if  parol ;  also  that  .the  set-  were  personal  property.  Fenlason  v. 
tier's  always  continuing  to   occupy  and  Racklifii  50  Maine,  302. 


156  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  IX. 

States,  yet  it  has  not  been  universally  adopted.  Thus  in  Massa- 
chusetts, where  there  is  no  court  with  full  equity  powers,  there 
has  been  a  series  of  cases,  all  tending  to  the  conclusion,  which 
seems  now  finally  established,  that  part-performance  does  not  take 
a  parol  contract,  relating  to  lands,  out  of  the  Statute  of  Frauds. 
Any  earlier  decisions,  which  may  have  incidentally  recognized  the 
contrary  doctrine,  may  be  considered  as  now  overruled.  Thus  it 
is  held,  that,  although  a  defendant  in  equity  may  rely  upon  a 
verbal  agreement  for  the  purpose  of  showing  that  it  would  be 
inequitable  to  enforce  specific  performance  of  a  written  one,  the 
Court  have  no  power  to  decree  specific  performance  of  a  contract, 
unless  every  part  of  it  has  been  reduced  to  writing. ^  So  in  a  case 
of  assumpsit,  to  recover  money  alleged  to  have  been  paid  on  a 
consideration  which  has  failed.  The  money  was  paid  on  a  parol 
agreement  to  purchase  of  the  defendant  a  certain  house  and  estate, 
which  were  to  be  conveyed  to  the  plaintiff  free  of  incumbrance, 
the  defendant  undertaking  to  discharge  a  mortgage  on  the  estate, 
which  was  subsequently  done ;  but,  before  the  estate  was  con- 
veyed to  the  plaintiff,  the  house  was  consumed  by  fire.  It  was 
held,  that  the  contract  was  void  by  the  Statute  of  Frauds  ;  that  the 
payment  of  the  money  did  not  take  the  case  out  of  the  statute  ; 
that  the  loss  must  fall  upon  the  defendant,  no  actual  conveyance 
having  been  made,  and  neither  party  in  fault ;  and  that  the  plain- 
tiff was  entitled  to  recover.^  And  in  a  still  later  case,  where  the 
general  question  was  more  distinctly  presented  than  in  any  pre- 
ceding one,^  it  is  expressly  decided,  that  part-performance  does 
not,  in  Massachusetts,  take  a  case  out  of  the  statute.  Bigelow,  J., 
says :  ^  "  This  Court  has  no  power  to  enforce  in  equity  the  specific 
performance  of  any  but  written  contracts.  The  ground  on  which 
Courts  having  full  chancery  powers  have  interfered  to  enforce 
parol  contracts  concerning  the  sale  of  lands  which  have  been  partly 
performed,  has  been  to  furnish  remedies  against  fraud,  and  not 
because  the  contracts,  as  such,  were  binding  on  the  parties.  Such 
cases  are  not  within  the  equity  power  of  this  Court."  The  sa'me 
point  has  been  settled  upon  similar  grounds  in  Maine.^     So  it  is 

1  Brooks   V.  Wheelock,  11  Pick.  438.         *  Jacobs  v.  The  Peterborough,  &c.,  8 

See  Sailors  v.  Gambril,  1  Smitli,  82.  Cush.  225.     See  Gen.  Sts. 

'■i  Thompson  v.  Gould,  20  Pick.  134.  5  Bubier  v.  Bubier,  24  Maine,  42;  Wil- 

3  Jacobs  V.  The  Peterborough,  &c.,  8  ton  v.  Harwood,  23  Maine,  131. 
Cush.  223.     See  Buggies  v.  Nantucket, 
11  Cush.  433,  436. 


CHAP.    IX.]  PART-PERFORMANCE.  157 

said  to  be  tlic  settled  doctrine  in  Mississi})|)i,  tliat  part-performance 
will  not  take  a  parol  sale  of  lands  out  of  the  Statute  of  Frauds, 
and  that  no  exceptions  of  that  character  will  be  ingrafted  on  the 
statute. 1  So  it  is  held  in  Tennessee,  that  a  Court  of  Equity  has 
no  power  to  relieve  against  the  provisions  of  a  statute  in  any  case ; 
that  parol  proof  is  inadmissible  to  establish  a  contract  required  by 
statute  to  be  in  writing,  or  to  show  part-performance,  from  which 
the  contract  may  be  inferred.  The  rule  is  adopted,  without  quali- 
fication, tliat,  to  make  a  contract  for  the  sale  of  land  valid,  it  must 
be  in  writing,  and  signed  by  the  party  to  be  charged  therewith.2(a) 
In  New  York  it  was  early  held,  that  a  contract  cannot  rest  partly 
in  writing  and  partly  in  parol ;  that,  wjiere  a  part-performance  is 
set  up,  the  party  cannot  resort  to  parol  evidence  in  aid  of  the 
written  agreement ;  but  the  terms  must  distinctly  appear,  or  be 
made  out  to  the  satisfaction  of  the  Court.^  So  in  New  York  it  is 
held,  that  the  rule  of  the  Court  of  Chancery,  by  which  parol  con- 
tracts for  the  sale  of  real  estate  are  taken  out  of  the  Statute  of 
Frauds  by  a  part-performance,  ought  not  to  be  extended  to  new 
cases,  which  do  not  come  clearly  within  the  equitable  principles  of 
the  previous  decisions  on  that  subject.*  So  in  Pennsylvania  it  was 
early  held,  that  possession  alone  will  not  take  a  case  out  of  the  act 
against  frauds,  &c.,  though  it  is  a  strong  circumstance  connected 
with  others.^  Thus  possession,  begun  before  a  parol  agreement 
of  lease  for  seven  years,  and  continued  afterwards,  is  of  too  doubt- 
ful a  nature  to  be  considered  as  part-performance.^  And  in  a 
much  later  case  it  has  been  decided,  that  the  delivery  of  posses- 
sion of  part  of  the  property,  in  compliance  with  a  parol  contract 
for  the  sale  of  land,  is  not  such  an  execution  of  it  as  will  take  it 
out  of  the  Statute  of  Frauds  and  Perjuries.''  But  the  doctrines 
of  the  English  Chancellors  concerning  part-performance  have 
finally  been  adopted  as  the  law  of  Pennsylvania,  under  the  Act 

1  Bearaan  v.  Buck,  9  Sm.  &  M.  207 ;  &  Bassler  v.  Nieslar,  2  S.  &  R.  355. 

Box  V.  Stanford,  lo  Sm.  &  M.  '.t3.  ^  Jones  v.  reterman,  3  S.  &  K.  543. 

'^  Patton  V.  M'Clure,  M.  &  Y.  333.  So   in   Indiana  ;    Johnston   i'.    Glancy,   4 

3  Tarkhurst  v.  Van  Cortlandt,  1  John.  Blackf.  94  ;    and  in  Hatelier  v.  Hatcher, 

Ch.  274.  1  McMul.  Eq.  311. 

*  German  v.  Machin,  6  Paige,  289,  293.  ^  Allen's  Estate,  1  Watts  &  S.  383,  385. 

(«)  A  party  making  improvements  on  in  chancery,  it  seems,  the  vaUie  of  such 

land,  held  by  a  contract  of  purchase  void  improvements  as  may  have  added  to  the 

by  tlie  Statute  of  Frauds,  is  not  entitled  permanent  value  of  the  estate,     ^lathews 

to  recover  the  value  of  such  improvements  v.  Davis,  6  Humph.  324. 
in  assumpsit.     He  can  recover,  however, 


158 


LAW  OF  VENDOES  AND  PURCHASERS.      [CHAP.  IX. 


of  Assembly  against  frauds  and  perjuries,  notwithstanding  the 
omission,  in  the  latter,  of  the  4th  section  of  the  English  statute.^ 
And  the  rule  elsewhere  adopted  seems  to  be  finally  established, 
that,  to  take  a  case  out  of  the  statute,  there  must  be  possession, 
and  such  part-performance  as  cannot  be  compensated  in  damages;^ 
and  also  exclusive  possession.^  Thus  the  plaintiffs  claimed  under 
the  will  of  their  grandfather  ;  the  defendants,  under  a  parol  gift 
or  contract  between  their  father  and  grandfather.  Held,  under 
the  Statute  of  Frauds,  the  defendai^s  had  the  burden  of  proof,  that 
the  contract  was  made  ;  the  land  clearly  designated  ;  open,  noto- 
rious, and  exclusive  possession  taken  and  maintained  under  and 
in  pursuance  of  the  contract ;  and  that  tliey  had  made  improve- 
ments which  did  not  admit  of  pecuniary  compensation.^(a)     So, 


1  Pugh  V.  Good,  3  Watts  &  S.  56. 

2  Moore  v.  Small,  19  Penn.  461. 

(a)  In  the  later  case  of  Poorman  v.  Kil- 
gore,  26  Penn.  305,  it  is  held,  that,  in  parol 
sales  of  land,  it  is  the  duty  of  the  Courts, 
in  the  application  of  the  practice  and  prin- 
ciples of  equity,  to  reject  ail  the  evidence 
of  a  verbal  contract,  if,  being  taken  to- 
gether, it  fails  to  make  out  such  a  case 
as  is  entitled  to  stand  as  an  exception  to 
the  statute.  The  use  and  possession  of 
the  real  estate  of  a  father,  by  a  child,  is  to 
be  interpreted  by  the  law  of  evidence  that 
arises  from  the  family  relation,  and,  as 
between  such  persons,  to  receive  a  differ- 
ent construction  from  similar  acts  between 
strangers.  As  between  such  persons,  the 
evidence  of  a  gift  or  sale  must  be  direct, 
positive,  express,  and  unambiguous ;  and 
its  terms  must  be  clearly  defined  ;  and  all 
the  acts  necessary  to  its  validity  must 
have  special  reference  to  it,  and  nothing 
else.  Thus  the  plaintiff  agreed  with  his 
son-in-law,  the  defendant,  that  the  latter 
should  go  into  possession  of  a  farm  of  the 
plaintiflj  and  give  him  one-third  of  the 
grain  raised  tJiereon,  and,  at  the  death 
of  the  plaintifi',  should  have  the  farm. 
Under  this  agreement,  the  defendant  took 
possession,  and  made  permanent  improve- 
ments. In  this  action  of  ejectment,  held, 
the  sale  was  within  the  statute ;  the  law 
presuming  that  the  plaintiff  was  putting 
into  experimental  operation,  for  the  bene- 
fit of  his  child,  an  arrangement  which  he 
expected  to  confirm  at  his  death.  Lowrie, 
J.,  says  (p.  371),  "A  delivery  of  posses- 
sion in  pursuance  of  a  verbal  contract  is 
now  regarded  as  essential  to  the  enforce- 
ment of  it ;  but  there  is  a  plain  reason 
why  it  ought  not  to  be  treated  as  securing 
that  result,  or  as  having  as  much  force 


3  Blakeslee  v.  Blakeslee,  22  Penn.  237. 

4  Moore  v.  Small,  19  Penn.  461. 

now  as  it  once  had.  When  livery  of  sei- 
sin was  at  common  law  a  sufficient  form 
of  transferring  title  to  land,  it  was  an  open 
and  notorious  act,  performed  in  tiie  pres- 
ence of  the  neighbors,  accompanied  by 
the  symbolical  delivery  of  tlie  turf  or 
twig,  and  the  declaration  of  the  quantity 
of  the  estate  granted.  But  even  this  sol- 
emn investiture  was  so  open  to  frauds  and 
perjuries,  that  it  called  for  the  correction 
of  the  statute,  requiring  the  contract  to  be 
put  into  writing.  Now  that  common-law 
form  has  worn  out,  and  delivery  takes 
place  without  any  form  at  all,  almost 
always  by  a  mere  entry  on  a  permission, 
express  or  implied  ;  and  thus  the  pub- 
licity and  form  of  the  delivery  no  longer 
avails  as  a  check  upon  the  mere  invention 
of  the  sale." 

Tlie  learned  Judge  further  remarks, 
"  In  our  first  endeavor  to  administer  these 
equitable  exceptions  through  the  instru- 
mentality of  a  common-law  trial,  we  very 
often  failed  by  reason  of  our  want  of  skill 
in  applying  such  remedies  in  a  form  so 
unusual.  This  experience  has  forced  upon 
the  courts  a  more  careful  study  and  appli- 
cation of  equity  practice,  and  a  conse- 
quent rejection  of  all  the  evidence  of  a 
verbal  contract,  if,  being  taken  as  true, 
it  does  not  make  out  such  a  case  as  is 
entitled  to  stand  as  an  exception  to  the 
statute.  9  Watts  &  S.  49  ;  9  Watts,  109 ; 
1  Harris,  21  ;  7  ib.  461,  471.  This  im- 
l^rovement  in  the  practice  tends  to  the 
security  of  written  titles,  even  if  the  ex- 
ceptions to  the  principle  of  the  statute 
remain.  In  the  case  of  Brawdy  v.  Brawdy, 
7  Barr,  157,  the  Judge  who  tried  the 
cause  heard  the  evidence  of  the  verbal 


CHAP.    IX.] 


PART-PERFORMANCE. 


159 


in  North  Carolina,  part-performance,  such  as  payment  of  the  wliole 
purchase-money,  and  delivery  of  possession  to  the  vendee,  will  not 
dispense  with  a  writing,  if  the  statute  be  insisted  on,  nor  admit 
parol  proof  of  a  contract  different  from  that  stated  in  the  answer.^ 
It  is  doubted  whether  it  would  be  otherwise,  if  the  contract  partly 
performed  were  admitted  by  the  answer.^  In  Texas,  in  the  late 
case  of  Hunt  v.  Turner,^  it  is  said,  "  A  contract  may  be  void 
under  the  Statute  of  Frauds ;  yet  if  the  conduct  of  the  party 
setting  up  the  invalidity  of  the  contract  has  been  such  as  to 
raise  an  equity  outside  of  and  independent  of  the  contract,  and 
nothing  else  will  be  adequate  satisfaction  of  such  equity,  it  will 
sustain  the  sale,  though  not  valid  under  the  Statute  of  Frauds.* 
Again,  a  party  to  an  illegal  contract  will  not  be  permitted  to  avail 
himself  of  its  illegality,  until  lie  restores  to  the  other  party  all  that 
has  been  received  from  him  on  such  illegal  contract.  So  long  as 
he  continues  to  hold  or  to  enjoy  the  advantages  of  the  contract,  he 
shall  not  be  allowed  to  set  up  to  his  advantage  its  nullity.  Rol)in- 
son  and  his  heirs  were  permitted  to  take  possession  of  the  land, 
and  to  make  large  improvements,  and  not  a  word  said  about  en- 


1  Allen  i\  Chambers,  4  Ired.  Eq.  125 ; 
Ellis  V.  Ellis,  1  Dev.  Eq.  180,  341. 
•i  Ellis  V.  Ellis,  1  Dev.  Eq.  341. 

contract,  and  then  withdrew  it  all  from 
the  jury,  as  being  entirely  insutficient  to 
make  out  the  case ;  and  this  practice  was 
expressly  approved. 

To  take  a  parol  contract  out  of  the 
statute,  it  is  essential  to  prove  distinctly 
the  terms  of  the  contract,  and  that  it  was 
binding  on  both  parties.  Notorious  and 
exclusive  possession  must  be  taken  and 
maintained  in  pursuance  of  the  contract. 
Valuable  improvements  must  have  been 
made  in  pursuance  of  the  contract,  which 
have  not  been  compensated  by  the  profits, 
and  cannot  be  compensated  in  money. 
Declarations  of  a  father  —  sucli  as,  "I 
have  given  John  the  tarm,"  "  The  farm 
is  John's,"  "  I  intend  John  to  have  the 
farm  "  —  are  insufficient.  They  are  ref- 
erable to  testamentary  intentions  rather 
than  to  a  contract ;  and  the  fact  of  a  will 
having  been  made  accordingly,  negatives 
rather  than  supports  a  contract,  even 
though  the  son  may  have  acted  on  the 
expectations  thus  created.  Toe  v.  Toe, 
3  Grant,  74. 

In  ejectment  by  heirs  against  a  son, 
for  land  claimed  by  him  under  a  parol 
contract,  by  which  his  father  proihised  to 
give  liini  the  land  in  consideration  of  ser- 


3  9  Tex.  389. 

4  Dugan's  Heirs  v.  Colwell's  Heirs,  8 
Tex.  R.' 

vices,  and  his  coming  to  live  thereon  ; 
after  he  had  proved  his  tatlier's  declara- 
tions and  promises,  and  that,  in  conse- 
quence thereof,  he  had  left  his  trade  in 
town,  and  had  gone  on  to  the  farm,  where 
he  remained  in  possession  of  the  portion 
claimed  as  his  until  the  father  died,  the 
plaintiffs  demurred  to  the  evidence.  Held, 
the  demurrer  admitted  tiie  facts  as  stated, 
M'ith  every  conclusion  a  jury  might  tiiirly 
infer  therefrom,  and  there  was  a  sufficient 
designation  of  the  land  by  metes  and 
bounds.  But  the  contract  was  within  the 
statute,  and  could  not  be  enforced  where 
the  labor  and  improvements  could  be 
compensated  in  damages ;  such  as  clear- 
ing and  fencing  land,  erecting  tarm-build- 
ings,  planting  an  orchard,  &c.  McKowen 
V.  McDonald,  43  Penn.  441. 

A  parol  agreement  by  one  person,  to 
purchase  land  and  convey  it  to  another 
whenever  advances  are  repaid,  is  void  by 
the  statute ;  and  an  entry  by  the  latter 
upon  the  land,  before  it  was  purchased  by 
the  former,  would  not  be  such  possession, 
under  and  in  part-execution  of  tiie  con- 
tract, as  would  take  it  out  of  the  statute. 
Myers  v.  Byerly,  45  Penn.  3G8. 


160  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  IX. 

forcing  the  legal  claim  to  the  land  by  Hunt  nor  his  heirs,  until 
about  nine  years  from  the  contract,  and  eight  after  the  death  of 
Hunt.  Hunt  went  into  possession  of  the  land  conveyed  to  him  by 
Robinson  immediately,  and  died  upon  it  about  a  year  after.  His 
heirs  continued  to  live  on  it  as  their  own  until  1850,  and  then  sold 
it,  and,  in  their  deed  to  the  purchaser,  described  it  as  the  same 
land  deeded  to  Hunt  by  Robinson  in  1832.  Will  not  these  facts, 
under  the  principles  laid  down,  raise  an  equity  that  will  override 
the  legal  title  to  the  plaintiffs  to  the  land  sued  for  ?  We  have  no 
hesitation  in  saying  that  it  does."  So  in  Ottenliouse  v.  Burleson  ^  it 
was  held,  that  where  the  purchase-money  has  been  paid,  and  the 
purchaser  has  entered,  and  made  valuable  improvements,  specific 
performance  of  a  verbal  contract  will  be  decreed  in  favor  of  the 
vendee  ;  and  also  that  such  a  case  falls  witliin  the  operation  of  a 
statute  giving  jurisdiction  to  the  Court  to  decree  specific  perform- 
ance of  the  written  contract  of  a  decedent  for  the  sale  of  land.  In 
Minnesota,  a  verbal  contract  to  convey  land  is  absolutely  void,  and 
may  be  objected  to  by  either  party  to  a  suit  upon  it,  although  the 
plaintiff  may  have  fully  performed  his  part.  The  plantiff,  having 
fully  performed  under  such  contract,  cannot,  by  a  demand  or  by 
tender  of  a  deed  for  execution,  fix  any  liability  upon  defendant.^ 

18.  It  has  been  seen  (§  12),  that  part-performance  is  held  to 
take  a  parol  contract  out  of  the  statute,  on  the  ground  o^  fraud ; 
in  the  absence  of  which,  actual  or  constructive,  equity  will  not 
interfere  to  enforce  the  contract,  though  in  part  executed.  It  is 
further  held,  that  specific  execution  of  a  parol  contract  for  land 
will  not  be  decreed  where  its  operation  would  be  harsh  on  any 
person  concerned.  But,  if  specific  execution  is  refused  for  any 
cause,  the  Court  will  decree  compensation  to  a  party  who  may  have 
expended  his  money  on  the  property  of  another  on  the  faith  of 
such  contract.^  Thus  the  defendant  agreed  to  assign  a  term 
of  years  in  his  house  and  certain  goods  for  200  guineas,  paying 
one  in  hand  as  earnest,  and,  three  days  after,  nineteen  more  ;  and 
it  was  also  agreed,  that  the  bargain  should  be  put  in  writing  by  a 
certain  time.  Bill  for  specific  performance.  Plea,  the  Statute  of 
Frauds,  and  that  the  money  was  only  paid  for  the  lease,  but  con- 
fessing the  receipt  of  the  twenty  guineas,  and  offering  to  repay 
them.     The  plea  was  overruled  ;  but  it  was  held  to  be  clear  that 

1  11  Tex.  87.  3  Anthony  v.  Leftwich,  3  Rand.  238, 

2  MacKubin  v.  Clarkson,  5  Min.  247.        216. 


CHAr.    IX.]  PART-PERFORMANCE.  IGl 

the  defendant  ought  to  repay  the  money. ^  So  the  defendant  agreed 
to  give  the  plaintiff  a  lease,  rendering  rent,  the  plaintiff'  i)aying 
^150  fine.  The  plaintiff  paid  £100,  but  the  defendant  refused  to 
perform  the  agreement.  Upon  a  bill  filed  for  s})ccific  performance, 
held,  the  agreement  was  within  the  statute,  but  the  XlOO  was 
decreed  to  be  refunded.-  So  in  New  York,  where,  as  has  been 
seen,  the  general  doctrine  of  part-performance  has  not  been  fully 
adopted,  if  possession  has  been  taken,  and  lasting  improvements 
made,  under  an  imperfect  agreement ;  though  the  Conrt  will  not 
grant  relief  on  the  ground  of  part-performance,  yet  the  bill  will  be 
retained  for  the  purpose  of  a  reasonable  compensation  for  such 
improvements.^  Thus  commissioners,  under  an  act  of  the  Legis- 
lature, were  held  to  have  no  right  to  use  the  lands  of  the  plaintiff, 
or  to  remove  or  destroy  his  property,  without  a  valid  and  legal 
contract  with  him  for  that  purpose,  or  until  compensation  had 
been  made  and  tendered  to  him  according  to  the  act.  And  though 
a  bill  filed  against  the  commissioners,  to  enforce  a  parol  contract 
for  compensation,  could  not  be  sustained,  as  being  within  the 
statute,  yet  the  Court  retained  the  bill,  and  awarded  an  issue 
of  quantum  damnificatus,  to  assess  the  damages,  as  the  plaintiff 
had  no  remedy,  or  at  best  a  doubtful  and  inadequate  one,  at  law.^ 
So  it  is  held  in  North  Carolina,  that  although  payment  of  the 
purchase-money,  taking  possession,  and  making  improvements, 
will  not  entitle  the  vendee  to  specific  performance,  yet  he  has  in 
equity  a  right  to  an  account  of  the  purchase-money  advanced,  and 
the  value  of  his  improvements,  deducting  therefrom  the  annual 
value  during  his  possessiori.°  But  a  later  case  decides,  that 
although  in  case  of  part-performance,  if  the  defendant  admits  the 
contract,  as  stated  by  the  plaintiff,  and  the  part-performance,  but 
relies  on  the  statute,  the  Court  will  order  an  account,  and  decree 
compensation  ;  if  the  contract  is  denied,  the  Court  can  grant  no 
relief,  because  it  can  go  into  no  proof  of  a  contract  variant  from 
tiiat  stated  in  the  answer.*^ 

1  Leak  v.  Morrice,  2  Ch.  Cas.  135.  ^  Phillips  v.  Thompson,  1  John.  Ch. 

'^  Lord  Fingal  v.  Koss,  2  Eq.  Cas.  Abr.     131,  149. 
46,  pi.  12.  5  Albea  v.  Griffin,  2  Dev.  &  Batt.  Eq. 

3  Parkhurst  v.  Van  Cortlancit,  1  John.     9  ;  Baker  v.  Carson,  1  ib.  3H1. 
Ch.  274.  e  Dunn  v.  Moore,  3  Ired.  Eq.  364;  Allen 

V.  Chambers,  4  Ired.  Eq.  130. 

11 


162  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  X. 


CHAPTER  X. 


CONSTRUCTION    OP    CONTRACTS. 

1.     General  rules.  17.     Parol  evidence ;  in  general,  excluded ; 

8.     Certainty.  exceptions. 

12.  Reservation  of  right  to  change  the  19.  As  to  subsequent  agreement;  waiver; 
contract.  variation,  &c. 

13.  Separate  instruments;  map  or  plan.  22.     Of  collateral  circumstances. 

1.  Having  considered  the  elements  and  requisites  of  a  contract 
for  the  sale  and  purchase  of  lands,  we  now  proceed  briefly  to  speak 
of  the  construction  of  such  contract. (a)  In  this  connection,  the 
agreement  itself  is  assumed  to  be,  as  the  Statute  of  Frauds  re- 
quires, in  writing,  and  the  present  inquiry  therefore  involves  the 
important  subject  of  the  admissibility  of  parol  evidence,  in  reference 
to  such  written  agreement. 

2.  It  is  a  general  rule,  that  words  shall  be  so  construed  as  to 
have  some  meaning,  rather  than  rejected.  Thus  where  a  vendor 
proposes  a  price,  clear  of  all  expenses,  the  agreement  is  construed 
to  mean  that  the  purchaser  shall  bear  the  expense  of  making  out 
the  title  ;  the  law  imposing  on  him  the  expense  of  the  conveyance.^ 

3.  The  meaning  of  words  may  be  determined  by  the  nature  of 
the  subject  to  which  they  relate.  Thus,  in  case  of  a  purchase  of  a 
rectory  for  "  the  use  of  the  parishioners  and  inlidbitants^''  the 
Court  suggested  various  senses  of  the  term  "  inhabitant,"  with 
reference  to  the  nature  of  the  subject.^  So  where  a  contract, 
relating  to  both  realty  and  personalty,  provided  that  all  property 
remaining  in  specie  at  a  certain  time  should  be  delivered  to,  &c., 
held,  "  specie  "  referred  to  the  personalty  oiily.'^ 

1  Stratford  v.  Bosworth,  2  Ves.  &  Bea.  341. 

2  Attorney-General  v.  Foster,  10  Ves.  335. 

3  Metropolitan,  &c.  v.  Godfrey,  23  111.  579. 

[a]  A  contract  does  not  require  any  in months    from    the    date    of    this 

particular  form  or  terms.      A  certificate  certificate,  and  the  W.  Company  is  hereby 

was  issued  to  A.,  as  follows  :  "  This  cer-  pledged  to  give  a  good  and  valid  deed  of 

tifies  that  A.  is  entitled  to  one  share  of  the   same  when   all   the   lots   shall  have 

ten  lots   (numbered   as   per  records  and  been   drawn   and    the    above    conditions 

indorsements)  in  the  city  of  Wyandotte,  complied  with."      Held,  such    certificate 

situated,  &c.,  subject  to  the  conditions  of  was  upon  its  face  an  agreement,  contract, 

improvement  within   the   city  limits,   to  or   pledge   to   convey  at   a  future   time, 

the  value  of dollars  per  share,  with-  Bemis  v.  Becker,  1  Kans.  226. 


CHAP.  X.]         CONSTEUCTION  OF  CONTRACTS.  163 

4,  A.  contracted  to  sell  and  plant  a  quantity  of  trees  on  B.'s 
land ;  and  also,  tliat  he  would  keep  in  order  the  trees  aforesaid 
for  two  years,  and  replace  such  as  should  die  during  that  period, 
"  except  from  injury  by  sheep,  game,  or  cattle." 

4  a.  In  an  action  to  recover  the  price,  held,  the  words  "  keep 
in  order"  meant,  not  to  prune  only,  but  to  weed  and  clear  the 
ground,  (a)  A  written  agreement  for  the  sale  or  conveyance  of 
a  "  bridge,  toll-house,  stables,  and  out-houses,  with  all  the  privi- 
leges and  appurtenances  appertaining  and  in  anywise  belonging 
to  said  bridge,"  will  pass  the  land  upon  which  it  stands,  and,  it 
seems,  that  which  is  necessary  to  its  beneficial  use  and  enjoyment.^ 

6.  A  stipulation  was  made,  in  articles  before  marriage,  that  the 
intended  settlement,  which  related  to  estates  in  Ireland,  should 
contain  all  the  covenants,  provisions,  and  conditions,  usually  con- 
tained in  marriage  settlements  made  in  England.  Held,  to  author- 
ize the  insertion  of  a  power  of  sale  and  exchange,  under  which 
lands  in  England  might  be  taken  in  exchange  for  lands  in  Ireland. 
A  reference  was  made  to  the  Master,  to  inquire  whether  certain 
proposed  powers  of  leasing  were  usual  in  that  part  of  Ireland 
where  the  estates  were  situated,  and  whether  any  circumstances 
connected  with  the  property  rendered  such  powers  expedient,  and 
for  the  interest  of  all  parties,  with  liberty  to  state  special  circum- 
stances.^ 

6.  Lessees  of  a  coal-mine  covenanted  with  the  lessors,  that  they 
would,  by  a  certain  time,  get  all  the  demised  coal  in  the  township 
of  B.,  "  not  deeper  than  or  below  the  level  of"  the  bottom  of  the 
A.  mine,  under  a  certain  point  at  the  surface.  In  an  action  u])on 
the  covenant,  a  question  arose,  whether  "  level "  was  used  in  tlie 
ordinary  sense  of  a  horizontal  plane,  or  in  a  peculiar  sense,  having 
reference  to  the  drainage.  Held,  that  evidence  was  admissible,  to 
show  the  understanding  of  the  term  "  level,"  used  as  in  the  above 
lease  among  coal-miners.  It  was  referred  to  an  arbitrator  to 
receive  such  evidence  and  state  a  case  for  the  opinion  of  the  Court. 
He  found  that  the  mine  was  situate  within  an  extensive  coal- 
mining district  in  the  county  of  Lancaster,  and  that,  "  according 

1  Sparks  v.  Hess,  15  Cal.  186. 

2  Bedford  v.  Abecorn,  1  Myl.  &  Cra.  312. 

(a)  Also,   that   evidence    of   non-per-    tion  of  damages.     Allen  v.   Cameron,   1 
formance  bj'  A.  of  any  part  of  the  con-     Crompt.  &  Mees.  832. 
tract  on  his  part  was  admissible,  in  reduc- 


164  LAW    OP    VENDORS    AND    PURCHASERS.  [CHAP.    X. 

• 

to  the  custom  and  understanding  of  miners  throughout  that  dis- 
trict," the  terms  "level,"  "deeper  than,"  and  "below,"  signified, 
&c. ;  stating  the  construction  of  the  terms,  which  was  in  favor  of 
the  defendant.  It  did  not  appear,  as  to  some  of  tlie  parties  to  the 
lease,  that  they  resided  within  the  district,  and  they  were  named, 
in  the  lease,  as  of  other  places.  Held,  the  existence  of  the  custom 
in  this  district  did  not  raise  a  conclusion  of  law,  that  the  parties 
used  the  terms  accordingly,  but  was  only  evidence  for  a  jury ; 
and  that  the  court  could  not  give  judgment  for  the  defendant ; 
althougli,  it  seems,  they  might  liave  done  so,  if  the  arbitrator  had 
found  the  custom  of  miners  without  limitation.^ 

7.  The  defendant  agreed  to  sell  the  plaintiffs,  a  railroad  cor- 
poration, "  the  land  they  might  take  on  the  northerly  side  of  the 
M.  turnpike,  adjoining  T.'s  land,  at  twenty  cents  per  square  foot, 
for  each  and  every  foot  so  taken  by  said  company."  Bill  for  spe- 
cific performance.  Held,  not  a  sale  of  the  land  generally,  or  of 
such  part  of  it  as  the  plaintiffs  might  elect,  or  of  such  as  they 
should  accept  the  offer  of;  but  of  such  part  as  the  plaintiffs 
might  take  in  the  exercise  of  the  authority  conferred  on  them  by 
law.^ 

7  a.  An  agreement  between  one  holding  land  under  a  levy  of 
execution,  and  a  purchaser  on  good  consideration  from  him  of 
part  of  the  land,  that  such  purchaser  shall  not  claim  any  part 
of  the  redemption-money  in  case  the  land  shall  be  redeemed, 
extends  only  to  a  redemption  in  good  faith  by  actual  tender  and 
payment  of  the  whole  money .^ 

7  b.  Under  a  contract  for  the  sale  of  real  estate,  which  reserved 
"  twenty  feet  of  stone  coal,  running  east  and  west  through  the 
same,"  the  vendor  cannot  reserve  "  a  strip  of  stone  coal  twenty 
feet  wide,  and  running  through  or  across  said  tract  in  an  easterly 
or  north-easterly  direction,  conforming  to  the  course  of  the  coal- 
vein."  ^ 

7  c.  The  plaintiff  conveyed  lands  to  the  defendants,  reserving  the 
right  to  maintain  certain  dams  upon  the  land  conveyed.  He  after- 
wards agreed  with  them,  giving  tliem  the  right  to  extend  and 
strengthen  their  own  embankment  by  the  use  of  his  lands,  and 
relinquishing  to  them  all  claim  for    damages    arising  from   the 

1  Clayton  v.  Gregson,  5  Ad.  &  Ell.  302.  3  Elliott  v.  Balcora,  11  Gray,  286, 

'^  Boston  &  Maine  Railroad  v.  Babcock,  *  Ferron  v.  Sturgeon,  10  Iowa,  586. 

3  Gush.  228. 


CHAP.  X.]         CONSTRUCTION  OF  CONTRACTS.  165 

exercise  of  the  privileges  thus  granted,  or  wliich  he  had  jirevioiisly 
sustained  at  their  hands.  Held,  this  agreement  did  not  give  the 
defendants  the  right  to  take  down  any  part  of  the  plaintilFs  dara.^ 

7  d.  A.  agreed,  in  consideration  of  the  benefits  arising  from  the 
erection  of  a  mill  on  the  premises,  to  convey  them  to  B.  as  soon  as 
the  bnilding  should  be  commenced  and  a  portion  of  the  machinery 
on  the  ground.  This  being  done,  the  conveyance  was  executed. 
The  mill  was  put  in  operation,  but  presently  stopped,  in  conse- 
quence of  the  failure  of  the  machinery,  part  of  wiiich  B.  removed, 
abandoning  the  enterprise.  A.  brought  a  bill  to  cancel  the  con- 
veyance. Held,  the  building  the  mill,  not  the  continuously  run- 
ning it,  was  the  only  condition  precedent,  and  the  Court  refused  to 
cancel  the  deed.^ 

1  e.  S.  agreed  to  pay  L.,  for  land  then  conveyed  to  him,  over 
and  above  the  amount  of  a  note  for  $2,500  then  given,  foOO  in  case 
S.  should  realize  83,500  therefor,  or  any  other  sum  between  $3,000 
and  13,500,  that  S.  might  sell  the  land  for.  Held,  S.  took  the 
title,  in  trust  to  sell  for  not  less  than  $3,000,  to  pay  L.  $2,500, 
keep  $500,  pay  L.  all  realized  between  $3,000  and  $3,500,  and 
keep  all  realized  in  excess  of  $3,500.  Tiiat  he  was  not  at  liberty  to 
refuse  an  offer  from  a  responsible  person,  coming  within  the  con- 
ditions,—  as  an  offer  of  $3,500,  —  in  the  hope  of  obtaining  more, 
except  at  his  own  risk,  and  that,  upon  proof  that  such  an  offer 
had  been  made  and  not  accepted,  S.  was  bound  to  pay  L.  $3,000.^ 

8.  With  regard  to  the  construction  of  contracts  for  the  sale  of 
land,  the  same  reasonable  ce7'tainty(ci)  is  required  to  render  them 
valid,  as  in  the  case  of  other  written  agreements.  And  where  a  party 
has  failed  to  prove  the  terms  of  the  agreement  relied  on,  equity 
will  not  assist  him,  by  directing  an  issue  to  ascertain  the  terms. 
A  plauitiff  is  bound  to  state  in  his  bill  the  agreement  relied  on, 
and  to  prove  it  as  stated.'^ 

9.  An  SLgreement  to  sell  land,  generally,  means  the  whole  inter- 
est of  the  vendor.^ 

9  a.  An  agreement  to  convey  ten  lots  in  a  town  is  not  bad  for 
uncertainty.^ 

1  Valentine  v.  Central,  &c.,  5  Dutch,  *  Savage  v.  Carroll,  2  Ball  &  Beatt. 
60.  444. 

2  Hone  V.  Woodruff,  1  Min.  418.  ^  Bower  v.  Cooper,  2  Hare,  408. 

3  Loriliard  v.  Silver,  35  Barb.  132.  6  Bemis  v.  Becker,  1  Kans.  226. 

(a)  Whether  the  purchase  of  a  yood-will  falls  within  this  requisition,  see  Coslake  v. 
Till,  1  Russ.  376. 


166  LAW    OP    VENDORS    AND    PURCHASERS.  [CHAP.    X. 

10.  An  agreement  in  writing,  for  the  sale  of  a  house,  did  not,  by 
description,  ascertain  the  particular  house,  but  referred  to  the 
deeds,  as  in  possession  of  a  person  named.  Held,  the  agreement 
was  sufficiently  certain,  if  it  could  be  ascertained  by  an  inquiry 
before  the  Master,  that  these  deeds  referred  to  the  house. ^  So,  in 
a  contract  for  a  conveyance,  a  description  of  the  land  as  ''  lying  on 
the  south-west  side  of  Black  River,  adjoining  the  lands  of  William 
Hafifiand  and  Martial,"  was  held  sufficiently  certain  to  entitle  the 
vendee  to  a  specific  performance.^  So  where  a  contract  of  sale 
described  the  land  as  lying  in  a  certain  town,  county,  and  State, 
and  the  240  acres  owned  by  the  vendor ;  held,  sufficiently  certain. ^ 
And  the  certainty  of  a  contract  may  in  part  depend  upon  some  sub- 
sequent act  of  the  vendee.  Thus  in  case  of  a  bond,  conditioned  to 
convey  a  certain  quantity  of  land  in  one,  two,  or  three  surveys,  at 
the  election  of  the  obligee  ;  the  selection  must  be  made,  and  the 
land  surveyed,  before  any  obligation  arises  to  convey.  And  there 
being  a  latent  ambiguity  in  the  description,  which  could  be  ex- 
plained only  by  an  actual  survey,  the  contract  cannot  be  rescinded 
before  such  survey,  showing  whether  the  bond  could  be  complied 
with  .4 

11.  But  where  A.  and  B.  agreed  in  writing,  that  A.  had  sold  to 
B.  "all  that  part  of  a  tract  of  land  called  C,  lying  adjoining 
the  turnpike-road  near  where  D.  now  lives,  at,  &c. ; "  held,  this 
agreement  contained  no  sufficient  description  of  the  land,  the 
bounds  and  quantity  being  both  uncertain,  and  could  not  be  en- 
forced any  further  than  as  admitted  by  B.°  So  a  contract  for  a  lease 
of  "  coals,  &c.,"  or  "  minerals,"  is  too  ambiguous  to  be  carried  out 
by  the  Court.^  So  upon  the  ambiguous  terms  of  a  contract,  as 
including  or  excluding  the  timber,  tlie  purchaser's  bill  for  specific 
performance  was  dismissed ;  and,  having  throughout  insisted  upon 
his  construction,  held,  he  could  not  compel  the  vendor  to  convey 
upon  the  terms  he  originally  offered.^ 

12.  In  case  of  an  agreement  to  convey  a  number  of  lots  at  a 
gross  sum,  giving  an  option  to  the  vendee  to  select  others  instead, 
to  be  laid  out  on  streets  not  then  platted,  the  vendor  cannot  com- 
pel acceptance  of  undesignated  lots,  except  those  chosen  by  the 

1  Owen  V.  Thomas,  3  My.  &  Kee.  353.  «  Price  i\  Griffith,  8  Eng.  Law  &  Eq. 

-  Kitclien  v.  Herring,  7  Ired.  Eq.  190.      72. 

3  Richards  v.  i:dick,  17  Barb.  2tiO.  ^  Clowes  v.   Higginson,  1    Ves.  &   B. 

4  Purcell  V.  M'Cleary,  10  Gratt.  246.         526. 

5  Dorsey  v.  Waymau,  6  GUI,  59. 


CHAP.  X.]         CONSTRUCTION  OF  CONTRACTS.  167 

vendee,  nor  prevent  a  selection  by  making  the  new  lots  vary  in 
size  from  those  designated. ^ 

13.  It  has  already  been  seen  (cli.  2),  that  a  contract  may  consist 
of  separate  writings,  as  well  as  a  single  instrnmcnt,  provided  they 
mutually  refer  to  each  other.  Of  course,  a  contract  thus  made  is 
also  to  be  construed  like  one  entire  agreement.  Thus  it  was 
agreed,  that,  for  a  sum  to  be  fixed  thereafter,  a  lessee  would  assign 
his  lease,  and  the  furniture  and  good-will  of  the  property,  reserving 
a  certain  part.  Subsequently,  on  receipt  of  this  sum,  a  bill  of 
sale  was  made  of  all  the  above  interests,  without  reservation. 
Held,  the  two  instruments  were  to  be  construed  together,  and  the 
reservation  still  took  effect.2(a)  So  a  vendor.  A.,  wrote  thus  to 
his  own  solicitor :  "  B  has  agreed  to  purchase  my  estate  in  this 
county  for  X 60,000,  including  the  timber.  I  have  shown  this  to 
B.,  and  given  him  a  copy,  not  signed,  as  a  memorandum."  A 
month  afterwards,  in  the  course  of  correspondence  concerning  the 
terms  of  a  formal  agreement,  B.  wrote  to  the  solicitor,  "  I  beg  to 
know  when  you  will  forward  the  agreement  to  be  entered  into  with 
A.,  relative  to  the  purchase  I  have  concluded  with  him  for  his  es- 
tate in  this  county."  Held,  the  letters,  agreement,  and  memoran- 
dum constituted  a  contract,  binding  on  both  parties,  and  vested  a 
devisable  interest  in  B.^ 

14.  But  where  terms  of  sale  are  stated  in  connection  with  one 
mode  of  transfer,  and  the  sale  afterwards  takes  place  in  another 
mode,  such  terms  will  not  bind  the  purchaser.  A.  and  his  agent 
attended  an  auction  for  the  sale  of  a  house,  and  had  notice  of  cer- 
tain conditions  tliere  exhibited.  A.,  afterwards,  through  his  agent, 
and  the  agent  of  the  vendor,  purchased  the  house.  Held,  he  was 
not  bound  by  the  particulars.*  So,  in  order  to  connect  different 
instruments  as  constituent  parts  of  one  contract,  the  parties  must 
be  the  same.  Thus  A.,  by  an  instrument  under  his  hand  and  seal, 
acknowledged  the  receipt  of  -flOO  from  B.,  which  he  promised  to 
pay  out  in  the  purchase  of  land  in  Michigan  or  Illinois,  and  to 

1  Robinson  v.  Cromelein,  15  Mich.  ^  Morgan  v.  Holford,  17  Eng.  Law  & 
316.                                                                        Eq.  174. 

2  Beman  v.  Green,  1  Duer,  382.  ■*  Cowley   v.   Watts,   17  Eng.  Law  & 

Eq.  147. 

(a)  So  equity  will  enforce  a  written  not  convey  ;  the  plaintiff  showing  perform- 
agreement  to  convey,  though  accompanied  ance  of  the  terms  on  which  sucli  convey- 
by  another  written  agreement  .that  the  ance  was  to  be  made.  Dooley  r.  Watson, 
party  will  forfeit  a  certain  sum,  if  he  does  1  Gray,  414. 


168  LAW   OF    VENDORS    AND    PURCHASERS.  [CHAP.    X. 

procure  deeds  of  the  same,  pay  three  and  a  half  per  cent  interest, 
and  act  for  the  mutual  interest  of  both  parties  ;  and  C,  on  the 
same  day,  and  on  the  same  piece  of  paper,  by  an  instrument  under 
his  hand  and  seal,  covenanted  and  guaranteed  the  fulfilment  by  A. 
of  the  said  agreement.  Held,  a  joint  action  against  A.  and  C,  for 
breach  of  the  original  agreement,  could  not  be  sustained.  Held, 
also,  that  the  original  agreement  and  the  guaranty  were  different 
contracts,  and  could  not  be  united  in  the  same  action  at  common 
law,  nor  under  §  120  of  the  (N.Y.)  Code  of  Procedure.^ (a) 

15.  In  some  cases,  a  writing  may  undoubtedly  be  controlled  or 
explained,  as  well  by  a  map  or  plan^  with  reference  to  which  the 
contract  is  made,  as  by  anotlier  accompanying  iustrument.  But  it 
is  held,2  that  the  mere  exhibition  of  the  plan  of  a  new  street,  at  the 
time  of  the  sale  of  a  piece  of  ground,  on  which  to  build  a  house  in 
the  line  of  the  intended  street,  does  not  of  itself  amount  to  a  war- 
ranty or  engagement  that  all  which  is  exhibited  on  the  plan  shall 
be  done,  more  especially  where  the  purchaser  has  a  distinct  con- 
tract put  into  the  solemn  form  of  a  charter  containing  no  such 
stipulation.  Thus,  where  the  governors  of  Heriot's  hospital,  and 
the  magistrates  of  Edinburgh,  in  selling  certain  lots  of  ground 
for  building,  in  the  line  of  an  intended  new  street  (York  Place), 
exhibited  a  plan  of  the  street,  and  some  of  the  surrounding  objects, 
which  represented,  or  was  supposed  to  represent,  certain  old  build- 
ings (not  belonging  to  the  vendors)  as  taken  down,  so  as  to  make 
the  street  of  equal  breadth  through  its  whole  extent,  though  the 
fen  charters  granted  to  the  purchasers  contained  no  obligation  on 
the  grantors  to  purchase  and  remove  these  old  houses  ;  held,  that 
the  magistrates  were  not  bound  to  remove  them,  or  to  purchase 
them  for  that  purpose,  when  an  opportunity  offered  of  doing  so  at 
a  reasonable  price  ;  and  that  the  purchasers  were  not  entitled  to 
retain  the  fen  duty  till  this  was  done. 

16.  A  deed  dated  in  1827,  and  made  between  G.  Pitt,  of  the  one 
part,  and  the  other  persons,  parties  to  the  deed,  of  the  other  part, 

1  De  Ridder  v.  Schermerhorn,  10  2  Feoffees  of  Heriot's  Hospital  v.  Gib- 
Barb.  638.  son,  2  Dow.  301. 

(a)  The  question  as  to  tlie   singleness  ment,  and  promising  to  make  a  good  title 

of  a  contract  sometimes  arises  in  reference  on  payment  of  the   balance,  unless   the 

to   the  distinct  terms  of  one  agreement,  vendee   prefer  to   resell ;    if  so,    to   pay 

Thus  an  agreement  was  made  to  sell  land  $50,000,  or  forfeit  one-half  the  balance  of 

at  $30,000,  one-third  to  be  paid  soon,  the  the    price.     Held,    all   one    contract  and 

rest  in  five  years,  and  interest.    The  ven-  valid.     Hodges,  24  Ark.  197. 
dors  give  a  covenant,  reciting  the  agree- 


CHAP.  X.]         CONSTRUCTION  OF  CONTRACTS.  1G9 

recited  that  Pitt,  being  seised  in  lee  of  the  lands  delineated  in  llie 
plan  thereto  annexed  (being  Pittville),  and  iiaving  it  in  contempla- 
tion to  establish  a  spa  at  or  near  the  nortli  end  of  the  lands,  and 
to  erect  a  pum)>rooni  at  or  near  the  spot  marked  on  the  plan,  and 
to  lay  out  the  rest  of  the  lands  for  buildings,  pleasure-grounds, 
roads,  &c.,  had  caused  the  ])lan  to  be  drawn,  whereby  the  mode  in 
which  the  lands  were  intended  to  be  laid  out,  and  the  purposes  for 
which  they  were  intended  to  be  converted  and  used,  were  described, 
in  order  that  the  beauty  and  regularity  of  the  whole  of  the  design 
might  be  for  ever  thereafter  preserved,  subject  only  to  such  altera- 
tions as  shoiild  be  made  or  approved  of  by  Pitt,  his  heirs  or  assigns, 
and  as  should  not  destroy  the  general  beauty  of  the  same  design, 
and  that  each  of  the  other  parties  to  the  deed  had  purchased  or 
agreed  to  purchase  one  or  more  of  the  pieces  of  land  described  in 
the  plan,  as  set  out  for  building.  The  deed  theu  contained  cove- 
nants by  Pitt,  his  heirs  and  assigns,  to  complete  the  pleasure- 
grounds,  roads,  &c.,  and  that  they  should  be  enjoyed  and  used  by 
the  occupiers  of  the  houses  to  be  erected  on  the  building-ground, 
and  that  Pitt,  his  heirs  or  assigns,  would,  on  every  agreement 
which  should  be  entered  into  by  him  or  them,  for  the  sale  of  any  part 
of  the  building-ground,  require  the  purchaser  to  covenant  with  him, 
his  heirs  and  assigns,  not  to  erect  any  messuage,  on  any  part  of 
the  ground,  which  might  lessen  in  value  any  other  of  the  mes- 
suages erected,  or  to  be  erected,  at  Pittville.  In  1833,  Pitt  agreed 
to  sell  lots  2,  3,  4,  and  5  of  the  building-ground  to  Stokes  ;  and 
Stokes  agreed  with  him  to  erect  three  houses  on  those  lots,  and 
that  each  house  should  stand  bacl^25  feet  from  the  western  bound- 
ary of  the  lots,  and  that  Stokes,  his  heirs  or  assigns,  would  not 
do,  or  suffer  to  be  done,  on  the  lots,  or  in  any  Ijuildingto  be  erected 
thereon,  any  act,  deed,  &c.,  which  might  be  deemed  a  nuisance, 
injury,  or  annoyance,  or  which  might  lessen  in  value  any  adjoining 
or  neighboring  lands  or  property,  or  any  houses  to  be  erected 
thereon.  Stokes  built  two  houses  on  lots  2  and  3  ;  and,  in  1833, 
Pitt  conveyed  those  lots  to  him  ;  and  Stokes,  for  himself,  his  heirs 
and  assigns,  entered  into  a  covenant  with  Pitt,  his  heirs  and 
assigns,  with  respect  to  those  lots  and  the  houses  thereon,  similar 
to  the  last-mentioned  stipulation  in  the  agreement.  Stokes  subse- 
quently gave  up  lots  4  and  5  to  Pitt,  and  abandoned  his  agreement 
as  to  them,  and  then  sold  his  house  on  lot  3  to  the  plaintiff.  Pitt 
afterwards  agreed  to  sell  lots  4  and  o  to  Creed.     The  agreement 


170  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  X. 

stipulated  that  the  houses  to  be  erected  on  those  lots  should  stand 
back  ten  feet,  at  the  least,  from  the  western  boundary  thereof ;  and 
it  contained  a  stipulation  for  protecting  the  adjacent  property  from 
injury,  &c.,  similar  to  that  in  Stokes's  agreement.  Both  Stokes 
and  Creed  executed  the  deed  of  1827.  Creed  began  to  build  a 
house  on  his  lots,  thirteen  feet  distant  from  the  west  boundary, 
which  was  twelve  feet  in  advance  of  the  plaintiff's  house,  and  which 
the  plaintiff  alleged  would  be  a  nuisance  or  annoyance  to  him,  and 
would  lessen  the  value  of  his  house,  and,  consequently,  would  be  a 
violation  of  the  covenant  in  the  deed  of  1827,  and  of  the  agreement 
of  1833.  Held,  that  the  plan  annexed  to  the  deed  of  1827  was 
merely  a  general  plan,  and  was  not  intended  to  be  strictly  adhered 
to,  but  its  details  might  be  varied  by  Pitt,  and,  with  his  sanction, 
by  the  purchasers  from  him  ;  and  that  the  plaintiff  was  not  eiititled 
to  avail  himself,  as  against  either  Creed  or  Pitt,  of  the  covenants 
of  1827,  or  of  the  agreement  of  1833,  for  the  purpose  of  preventing 
the  completion  of  Creed's  house  in  the  manner  intended,  or  the 
performance  by  Pitt  of  the  agreement  with  Creed.^ 

17.  No  question  more  frequently  arises,  in  the  construction  of 
the  class  of  contracts  under  consideration,  than  that  relating  to 
the  admissibility  of  parol  evidence^  to  explain,  qualify,  or  control 
them.  Upon  this  subject  it  is  held,  that  evidence  in  writing,  not 
admitted,  —  as,  e.g.  an  agreement  unstamped,  —  does  not  prevent 
parol  evidence,  if  otherwise  admissible.^  But  the  general  rule  ap- 
plies to  this  class  of  written  contracts  as  to  others,  that  they  cannot 
be  explained,  varied,  or  controlled  by  parol  evidence.  Thus  an 
indefinite  written  agreement  cannot  be  made  sufficient  by  parol 
evidence.^  So  parol  evidence  cannot  be  admitted,  that  a  purchase 
of  an  estate,  in  a  party's  own  name,  was  in  fact  made  on  behalf  of 
another  person.*  So,  in  case  of  a  joint  purchase  of  land,  parol 
evidence  is  not  admissible  of  a  previous  agreement  for  an  unequal 
division.'^  So  where  by  a  written  agreement  the  plaintiff  agreed  to 
sell,  and  the  defendant  to  purchase,  upon  the  terms  stated,  the 
Leigh  estate ;  and  the  defendant  agreed  to  sell,  and  the  plaintiff  to 
purchase,  the  Haresjield  estate ;  and  it  was  not  expressed  that  the 
two  contracts  were  to  be  dependent  on  each  other ;  and  the  de- 

1  Sclireiber  v.  Creed,  10  Simons,  9.  ^  Bartlett  v.  Pickersgill,  1  Cox,  15. 

2  Heirn  v.  Mill,  13  Ves.  114.  &  Jarrett  v.  Johnson,  11  Gratt.  327. 

3  Church,  &c.  v.  Farrow,  7  Rich.  Eq. 
378. 


CHAP.    X.]  CONSTRUCTION    OF    CONTRACTS.  171 

fendant  was  unable  to  make  a  good  title  to  the  Haresfield  estate : 
lield,  the  plaintiff  was  entitled  to  specific  performance  of  the  con- 
tract as  to  the  Leigh  estate  ;  and  evidence  aliunde  was  not  ad- 
mitted, to  show  the  intention  of  the  parties,  that  the  agreement 
should  take  effect  as  an  exchange}  So  parol  evidence  is  not  ad- 
missible, to  prove  an  additional  rent  payable  by  a  tenant,  beyond 
that  expressed  in  the  written  agreement  for  a  lease.^  So  where  < 
there  was  a  written  agreement  for  a  lease,  which  was  executed  ac- 
cordingly, it  was  held,  that  parol  evidence  was  not  admissible,  that 
the  lease,  though  in  strict  conformity  with  the  written  agreement, 
was  contrary  to  its  spirit,  as  there  was  something  dehorn  the  con- 
tract agreed  upon  between  the  parties,  yet  omitted  in  the  lease ; 
though,  if  there  had  not  been  a  written  agreement,  the  evidence 
might  have  been  admissible.^  So  evidence  is  not  admissible  (in 
support  of  a  bill  for  specific  performance)  to  prove  from  conversa- 
tions before  and  at  the  time  of  signing  an  agreement  for  a  lease, 
that  the  intent  of  the  parties  was  different  from  the  memorandum, 
though  the  same  was  written  by  the  lessee,  and  the  words  "  clear 
of  all  taxes  "  (which  was  the  purport  of  the  conversation)  were 
omitted  in  the  memorandum.*  So  specific  performance  of  an 
agreement  in  writing,  for  a  lease  for  sixty  years,  was  refused,  upon 
parol  evidence  of  an  alteration  stipulated  for  at  the  same  time,  and 
upon  the  faith  of  which  the  party  executed.  A  distinction  was 
taken  between  the  case  of  a  defendant  refusing,  and  a  plaintiff 
seeking,  the  execution  of  an  agreement  under  such  circumstances.^ 
So  an  agreement  in  writing,  to  convey  such  lots  as  the  grantor 
shall  select,  cannot  be  changed  by  parol,  so  as  to  require  the 
grantor  to  convey  such  lot  as  the  grantee  may  select.*^  So  the 
defendant  signed  a  memorandum,  as  follows :  "  I  have  sold  to 
[the  plaintiff]  four  building  lots ;  first  two  lots  ninety  feet  front, 
depth  about  one  hundred  and  fourteen  and  ninety-six  and  a  half; 
next  two  lots  one  hundred  feet  front,  depth  about  ninety-two  and 
seventy-six  feet ;  all  the  above  lots  the  same  as  laid  down  on 
the  plan  ;  first  two  mentioned  lots  at  five  cents  a  foot ;  next  two 
lots  at  four  and  a  quarter  cents  a  foot."  The  plaintiff  brouglit  an 
action  against  the'  defendant,  alleging  in  his  declaration,  that 
he  had  tendered  to  the  defendant  twenty-five  per  cent  of  the  price, 

1  Croome  v.  Lediard,  2  My.  &  Kee.  201.  ■*  Rich  v.  Jackson,  4  Bro.  C.  C.  514. 

2  Preston  v.  Merceau,  2  Jilack.-  124'.).  ^  Clarke  v.  Grant,  14  Ves.  524. 

3  Da  vies  v.  Tilton,  2  Dru.  &  War.  232.  *>  WiUlbahn  v.  liobidoux,  11  Mis.  659. 


172  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  X. 

and  demanded  a  deed ;  that  lie  was  ready  to  execute  mortgages 
for  the  balance,  and  that  the  defendant  had  refused  to  execute 
a  deed.  At  the  trial,  the  plaintiff  offered  parol  evidence,  that, 
when  the  memorandum  was  execvited,  it  was  agreed  between  him 
and  the  defendant,  that  one-quarter  of  the  purchase-money  should 
be  paid  in  cash,  on  delivery  of  the  deed,  and  the  other  three- 
.quarters  secured  by  notes  and  mortgages,  and  that  the  notes 
should  be  payable  in  one,  two,  and  three  years,  with  interest 
yearly.  Held,  this  evidence  was  inadmissible,  both  because  it 
would  vary  the  written  agreement,  the  legal  effect  of  which  was  to 
pay  cash  on  demand,  within  a  reasonable  time  ;  and  because  it  was 
offered  in  proof  of  a  contract  for  the  sale  of  land,  contrary  to  the 
Statute  of  Frauds. 1 

18.  The  general  rule  above  stated,  however,  is  not  without  its 
exceptions,  more  especially  in  Courts  of  Equity.  Thus,  although 
parol  evidence  in  relation  to  a  written  contract  is  excluded  for  the 
purpose  of  enforcing^  it  is  sometimes  admitted  for  the  purpose  of 
resisting,  specific  performance.'^  Thus  parol  evidence  of  declarations 
made  by  an  auctioneer  at  the  sale,  warranting  the  quantity,  was 
received  in  opposition  to  a  specific  performance,  on  the  ground  of 
fraud.^  And  where  a  parol  agreement,  varying  the  written  agree- 
ment, is  set  up  by  the  defendants  in  a  suit  for  specific  performance, 
and  supported  by  evidence  affording  a  presumption  or  suspicion  of 
its  existence,  aw  inquiry  will  be  directed.*  So  parol  evidence  is 
admissible,  in  opposition  to  specific  performance  of  a  written 
agreement,  upon  the  heads  of  mistake  or  surprise,  as  well  as 
of  fraud ;  and  upon  such  evidence  a  bill  will  be  dismissed ;  while 
another  bill  for  specific  performance,  corrected,  according  to  the 
same  evidence,  but  contradicted  by  the  answer,  was  also  dis- 
missed .^(a)  But  the  plaintiff,  in  a  bill  for  specific  performance, 
cannot  show  by  parol  evidence,  that  by  fraud  the  written  agree- 
ment does  not  express  the  real  terms,  and  thus  obtain  specific 
performance  with  a  variation.^ 

19.  The  principle,  which  excludes  parol  evidence  as  to  written 
contracts  for  the  sale  and  purchase  of  lands,  is  sometimes  brought 

1  Eyan  v.  Hall,  13  Met.  520.  *  Van  v.  Corpe,  3  My.  &  Kee.  277. 

2  Hittginson  v.  Clowes,  15  Ves.  515.  ^  Townshend  v.   Stangroom,    6    Ves. 

3  Winch    V.    Winchester,    1    Ves.    &    328. 

Beam.   375.  ''  WooUam  v.  Hearn,  7  Ves.  211. 

(a)  See  Mistake,  Fraud. 


CHAP.    X.]  CONSTRUCTION    OF    CONTRACTS.  173 

ill  question  with  reference  to  svhsequoit  agreements,  attcmi)tcd  to 
be  set  up  by  way  of  alteration,  waiver,  or  discharge  of  such  con- 
tracts. And  the  general  rule  is,  that  a  written  agreement  within 
the  Statute  of  Frauds  may  be  varied  by  a  subsequent,  parol, 
distinct,  and  collateral  agreement.^  Thus  the  plaintiff  gave  a  l)ond 
to  sell  land  to  the  defendant,  who  gave  him  notes  for  the  consider- 
ation, and  took  possession  ;  but  afterwards,  in  pursuance  of  a 
parol  agreement,  the  land  was  surrendered  to  the  plaintiff,  who 
finally  sold  it,  though  the  bond  was  not  cancelled  or  surrendered. 
Held,  no  action  would  lie  on  tlie  notes,  the  whole  contract  l)eing 
discharged.^  So  where  a  party  voluntarily,  though  by  parol, 
abandons  an  agreement  in  writing,  for  the  sale  or  exchange  of 
lands,  with  the  assent  of  the  other  party,  because  he  is  not  in 
a  situation  to  perform  the  same,  it  seems,  he  cannot  afterwards  de- 
mand a  specific  performance.^  So  where,  in  articles  for  the  sale  of 
land,  no  place  is  mentioned  for  delivery  of  the  deed,  the  ven- 
dor is  bound  to  seek  the  vendee,  and  tender  a  deed.  But  the 
parties  may  afterwards,  by  parol,  agree  on  the  place  ;  or  the 
vendee  may  appoint  it ;  and  a  tender  at  that  place  will  be  suffi- 
cient.^ So  the  time  of  performance  of  a  written  contract  relating 
to  the  sale  of  lands  may  be  enlarged  by  a  subsequent  parol  agree- 
ment. .  Mr,  Justice  Fletcher  remarks,  that,  in  the  case  of  Cuff  v. 
Penn,^  the  Court  held,  that,  where  an  action  was  brought  for  non- 
acceptance  of  bacon  sold  by  a  written  agreement,  in  answer  to  the 
defence  of  non-delivery  at  the  appointed  time,  the  plaintiff  might 
show  a  subsequent  verbal  contract,  enlarging  the  time,  and  that  he 
delivered  or  offered  to  deliver  it  within  the  substituted  time,  and 
the  plaintiff  had  a  verdict  and  judgment.  "  The  present  case 
strongly  illustrates  the  propriety  and  necessity  of  the  rule  thus 
established.  From  the  evidence  in  the  case,  it  must  be  assumed 
that  the  plaintiff"  would  have  paid  the  money  within  the  time 
limited  in  the  written  contract,  if  the  defendant  had  not  orally 
agreed  to  substitute  another  time,  and  the  plaintiff,  in  fact, 
tendered  the  money  within  the  substituted  time.  The  defendant, 
therefore,  by  his  own  act,  by  orally  agreeing  to  receive  the  payment 
at  another  substituted  time,  prevented  the  plaintiff  from  making 
the   payment  within  the   time   limited  in   the  original  contract. 

1  Townshend    v.    Stangroom,    6    Ves.  ^  Baldwin  v.  Salter,  8  I'aige,  473. 
328.  4  Franchot  v.  Leach,  5  Cowen,  506. 

2  Dearborn  v.  Cross,  9  Cowen,  48.  5  1  M.  &  S.  21. 


174  LAW    OF    VENDORS    AND    PURCHASERS.  [CHAP.    X. 

Though  the  plaintiff  was  ready,  and  offered  to  make  the  payment 
within  the  substituted  time,  yet  the  defendant,  notwithstanding 
his  oral  agreement,  refused  to  receive  the  money,  and  now  sets 
up  the  non-performance  by  the  plaintiff  within  the  time  originally 
limited,  which  the  defendant  himself  has  by  his  own  act  occa- 
sioned, as  a  defence  to  the  plaintiff's  claim  in  this  action.  This 
defence  cannot  be  maintained."  ^  So,  in  a  late  case  in  Alaba- 
ma,^ the  following  remarks  were  made  by  the  Court :  "  The 
evidence  proved  that  this  note,  which  was  for  $300,  was  origi- 
nally given  for  land  bought  by  the  defendant  from  the  plaintiff; 
tliat  the  latter,  discovering  he  did  not  own  a  portion  of  the  land 
sold,  agreed  with  the  vendee,  on  receiving  from  him  $225  on 
the  note,  that  he  should  be  discharged  from  the  payment  of  the 
balance,  unless  he  executed  to  him  a  valid  deed  for  such  portion 
within  a  short  time  thereafter ;  that  no  such  deed  was  executed 
for  nearly  two  years,  and  tliat  thereupon  the  defendant  abandoned 
the  land  to  which  the  agreement  referred.  If  by  the  terms  of 
the  original  contract  it  had  been  provided  that  the  defendant 
should  not  pay  a  certain  amount  of  the  purchase-money,  until  the 
vendor  executed  to  him  a  valid  title  for  the  land  in  question,  it 
would  then  fall  directly  within  the  principle  of  Whitehurst  v. 
Boyd,^  and  Phillips  v.  Longstreth.^  The  general  rule  is,  that 
verbal  evidence  is  not  admissible  for  the  purpose  of  contradicting 
or  altering  a  written  instrument ;  but  this  rule  does  not  exclude 
such  evidence,  when  it  is  adduced  to  prove  that  such  instrument  is 
totally  discharged.  If  the  defendant  had  paid  the  whole  of  the 
purchase-money,  and  taken  possession  under  the  contract,  a  Court 
of  Equity  would  have  enforced  it,  by  decreeing  a  conveyance ; 
if  this  could  not  have  been  done,  on  account  of  a  want  of  title  in 
the  vendor,  he  would  have  been  compelled  to  refund.  This  being 
the  law,  it  would  be  singular  if  the  parties  could  not,  with  the 
view  of  avoiding  any  future  difficulty  which  might  result  from  the 
failure  of  the  vendor  to  obtain  titles,  extend  the  time  of  payment 
of  the  note,  and  provide  that  it  should  not  be  enforced  if  valid 
titles  were  not  made  within  a  certain  time.  We  cannot  doubt  as  to 
the  validity  of  such  an  arrangement.  So  long  as  the  vendee 
retained  possession  under  the  contract,  it  might  operate  on  his 


1  Stearns  v.  Hall,  9  Cush.  31,  34.  3  8  Ala.  375. 

2  Hussey  v.  Roquemore,  27  Ala.  287.  *  14  Ala.  337. 


CHAP.  X.]         CONSTRUCTION  OF  CONTRACTS.  175 

part  as  a  waiver,  or  extension  of  the  time ;  but  lie  was  not  bound 
to  wait  always,  since,  by  doing  so,  he  was  rendering  himself  liable 
to  the  actual  owner,  and  might  therefore  abandon  the  possession 
in  a  reasonable  time ;  and  if  he  did  so,  the  note  could  not  be 
enforced  against  him.  The  fact,  that  the  defendant  retained  the 
possession  of  the  other  lands,  does  not  affect  the  principle,  as 
the  subsequent  agreement  had  no  relation  to  them.  It  was  the 
same  as  if  no  other  land  had  been  purchased  than  the  piece,  the 
failure  to  make  titles  to  which  it  was  agreed  should  discharge  the 
note.  It  seems  to  have  been  supposed  that  the  agreement  as 
to  the  discharge  of  the  note  was  in  the  nature  of  a  penalty ;  and 
that,  conceding  its  validity,  the  only  benefit  the  defendant  could 
obtain  from  it  was,  to  scale  the  note  to  the  amount  of  the  actual 
value  of  the  land  to  which  titles  were  not  made,  and  the  fence 
which  was  upon  it.  But  this  position  is  not  tenable.  We  doubt 
whether  the  doctrine  can  in  any  sense  apply  to  an  agreement  of 
this  character ;  but,  if  it  does,  the  plaintiff  can  derive  no  advantage 
from  it,  as  the  damages  resulting  from  the  failure  to  make  a  good 
title  were  uncertain.  There  was  but  a  single  act  to  be  done  ;  and 
the  disproportion  between  the  value  of  the  land  to  be  conveyed 
and  the  amount  due  upon  the  note,  if  there  was  any,  was  so  slight, 
that  it  could  not  authorize  the  Court  to  declare  it  a  penalty."  ^ 

20.  But  it  has  been  held  that  a  purchaser,  who  in  his  written 
contract  stipulates  for  a  good  title,  cannot  be  required  to  complete 
the  purchase  upon  a  defective  title,  on  the  ground  of  a  verbal 
waiver  of  such  stipulation.  Thus  an  agreement  was  made  in  writ- 
ing, to  sell  several  lots  of  land,  and  to  make  a  good  title  to  them, 
and  a  deposit  was  paid.  It  was  afterwards  discovered,  that  a  good 
title  could  not  be  made  to  one  of  the  lots.  The  vendor  delivered 
possession  of  all  the  lots,  which  the  vendee  accepted.  In  an  action 
to  recover  the  remainder  of  the  purchase-money,  the  declaration 
stated,  that  the  plaintiff  agreed  to  deduce  a  good  title  to  all  the 
lots  except  one,  and  that  the  vendee  discharged  and  exonerated 
him  from  making  out  a  good  title  to  tliat  lot,  and  waived  his  right 
to  require  the  same.  Held,  oral  testimony  was  not  admissible  of 
such  waiver.^  And  though  a  parol  waiver  of  a  written  contract, 
amounting  to  a  comjDlete  abandonment,  and  clearly  proved,  would 


1  Watts  i\  Sheppanl,  2  Ala.  425.  58;    2  Nev.  &  Mann.  28.     See  Inge   v. 

'^  Goss  V.  Lord  Nugent,  5  Barn  &  Adol.    Lippingwell,  2  Dick.  4G9. 


176  LAW  OP  VENDORS  AND  PURCHASERS.      [CHAP.  X. 

bar  a  specific  performance,  or  even  parol  variations,  so  acted  upon, 
that  the  original  agreement  could  no  longer  be  enforced  without 
injury  to  one  party  ;  sucli  variations  verbally  agreed  upon  are  not 
sufficient,  the  situation  of  the  parties  in  all  other  respects  remain- 
ing the  same,  more  especially  where  the  variations  are  all  for  the 
advantage  of  the  defendant,  by  gratuitous  covenants  of  the  plain- 
tiff.^ And  upon  a  bill  praying  performance  of  an  agreement  duly 
signed,  but  offering  to  the  defendant  the  benefit  of  certain  varia- 
tions, contained  in  a  subsequent  unsigned  memorandum,  the  Court 
will  decree  specific  performance  with  those  variations,  if  the  de- 
fendant elects  to  take  advantage  of  them  ;  if  not,  of  the  original 
agreement.  A  treaty  and  negotiations  for  a  variation  will  not 
amount  to  a  waiver,  unless  the  circumstances  show,  that  the  par- 
ties intended  an  absolute  abandonment  and  dissolution  of  the  con- 
tract.2 

21.  Written  agreement,  on  the  sale  of  land,  that  the  purchaser 
shall  search  for  coal,  under  the  direction  of  the  vendor,  for  a 
limited  time  ;  and  that  if,  within  that  time,  coal  be  found  in  a  suffi- 
cient body  to  work,  the  purchaser  shall  pay  an  augmented  price 
for  the  land.  Held,  a  parol  agreement,  varying  the  time  within 
which  the  search  may  be  continued  (and  consequently  obliging 
the  purchaser  to  pay  the  augmented  price),  is  within  the  Statute 
of  Frauds,  and  will  not  be  enforced  by  a  Court  of  Equity.^  So  it 
has  been  held  in  Massachusetts,  where  no  court  exists  with  full 
equity  powers,  that  the  Court  lias  no  power  to  decree  specific  per- 
formance of  a  contract,  unless  every  part  of  it  has  been  reduced  to 
writing.  Thus  where  the  defendant  contracted  in  writing  to  exe- 
cute and  deliver  a  deed  of  land,  upon  payment  of  certain  notes 
given  for  the  purchase-money,  and  made  a  subsequent  verbal 
promise  to  deliver  the  deed  upon  payment  of  the  notes  before  they 
should  fall  due  ;  held,  a  bill  in  equity  against  him,  for  specific  per- 
formance of  the  contract  as  modified  by  the  verbal  agreement, 
could  not  be  sustained.* 

22.  Though  parol  evidence  cannot  be  admitted,  for  the  purpose 
of  varying  a  written  agreement,  it  may  be,  for  the  purpose  of  rais- 
ing an  equity,  founded  on  the  agreement,  by  proof  of  collateral 


1  Price  V.  Dyer,  17  Ves.  356. 

2  Robinson  v.  Page,  3  Itnss.  119. 

3  Hetli  V.  Wooklridge,  6  Rand.  605,  607. 

*  Brooks  V.  Wheelock,  11  Pick.  439.     See  Gen.  Stats. 


CHAP.  X.]         CONSTRUCTION  OF  CONTRACTS.  177 

cireumstances}(ja)  "  In  such  cases,  parol  evidence  is  not  used  to 
vary,  contradict,  or  control  the  written  contract  of  the  parties,  but 
to  apply  it  to  the  subject-matter.  For  this  reason,  any  evidence 
which  tends  to  indicate  the  nature  of  the  subject-matter  included 
in  a  written  contract,  wliich  would  otherwise  be  uncertain  or  am- 
biguous, and  to  determine  its  application  relatively  to  other  oljects, 
is  admissible.  Thus,  to  show  the  position  of  land  and  its  condi- 
tion, the  mode  of  its  use  and  occupation,  that  it  had  acquired  a 
local  designation  or  name,  and  whether  it  was  parcel  of  a  particnlar 
estate."  ^  Thus  where  a  memorandum  was  given  to  a  tenant, 
agreeing  to  renew  a  lease ;  held,  parol  evidence  was  admissible, 
that  the  cellar  of  the  adjoining  tenement  had  been  occupied  there- 
with, and  was  necessary  to  the  tenant's  business,  for  the  purpose 
of  showing  that  it  was  included  in  the  lease.^  So  where  an  act  of 
Congress  provided,  that  a  confirmee,  whose  title  was  disputed, 
should  prove  "  inhabitation,  cultivation,  or  possession  ;  "  held,  they 
might  be  proved  by  parol  evidence.^  So  a  written  contract,  to 
convey  an  undivided  moiety  of  land,  is  not  contradicted,  varied,  or 
added  to  by  parol  evidence,  that  the  parties  agreed  to,  and  actually 
made,  a  certain  division.^  So  m.  case  of  an  agreement  in  writing, 
to  convey  to  G.  W.  Gerrish  "  the  wharf  and  flats  occupied  by 
Towne  &  Hardin,  and  owned  by  Francis  Head,"  parol  evidence 
was  offered,  that  two  lots  of  land,  only  one  of  which  bounded  on 
the  sea,  with  a  street  between  them,  were  both,  at  the  time  of  the 
agreement,  owned  by  Head  and  occupied  by  Towne  &  Co.,  for  the 
purpose  of  landing  and  storing  wood  and  lumber,  and  known  as 
Towne  <fe  Hardin's  wharf,  and  had,  before  the  street  was  laid  out, 
formed  parts  of  one  lot,  and  been  used  together,  and  been  occa- 
sionally covered  by  the  tide.  Held,  the  description  being  a  general 
one,  referring  to  extrinsic  objects  and  circumstances,  the  evidence 
was  admissible,  and  the  vendee  was  entitled  to  a  conveyance  of 
both  lots.^     So,  upon  a  bill  for  specific  performance,  it  appeared 

1  Davis  V.  Symonds,  1  Cox,  402.  *  Guitard  v.  Stoddard,  16  How.  494. 

2  Per  Bigelow,  J.,  Gerrish  v.  Towne,  3        5  Shiels  v.  Stark,  14  Geo.  429. 
Gray,  87-88.  6  Gerrish  v.  Towne,  3  Gray,  82. 

•*  Crawford  v.  Morris,  5  Gratt.  90. 

(a)  It  is  said,  that,  to  estabhsh  a  title  to  purchaser  must  have  exchisive  possession, 

land  under  a  parol  contract,  the  contract  luider  the  contract ;  and  it  must  be  so  far 

must  be  express  (not  implied  from  acts),  executed,  that  it  would  be  a  fraud  on  the 

with  all  its  terms  and  conditions,  clearly  purchaser    not    to    execute    it    entirely, 

and  explicitly  proved  on  both  sides,  fair,  Greenlee  v.  Greenlee,  22  Penn.  225. 
founded  on  a  sufficient  consideration  ;  the 

12 


178  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    X. 

that  the  plaintiif  and  defendant  entered  into  an  agreement  in 
writing,  that  the  plaintiff  should  do  the  brickwork  and  plastering 
on  sixteen  tenements  in  St.  Francis  Street,  between  Dearborn  and 
Wilkinson  Streets,  in  Mobile,  and,  on  completion  of  the  work,  that 
the  defendant  should  give  the  plaintiff  a  deed  for  three  of  them, 
not  specifying  which  of  the  sixteen.  Held,  such  specification  was 
not  a  term  of  the  contract,  but  related  to  the  subject-matter,  as  to 
which  parol  evidence  was  admissible  ;  and  the  parties  themselves 
having  subsequently  designated  the  tenements,  and,  moreover,  as 
they  were  all  of  the  same  value,  thus  enabling  the  Court  to  make 
the  designation,  the  plaintiff,  having  fulfilled  his  part  of  the  con- 
tract, was  entitled  to  a  decree.^  So,  in  case  of  an  agreement  to 
lease  for  years  "  the  Adams  House,  situate  on  Washington  Street, 
in  Boston  ;  "  held,  parol  evidence  was  admissible,  that  the  parties 
intended  to  include  in  the  lease  only  so  much  of  the  building  as 
was  fitted  up  for  a  hotel,  by  the  name  of  the  Adams  House;  and 
not  the  distinct  shops  occupying  the  whole  of  the  ground-floor  ex- 
cept the  entrance  to  the  hotel.  Shaw,  C.J.,  says,  in  substance : 
"  What  was  embraced  in  the  bond  by  the  description,  '  Adams 
House  ? '  It  is  not  therein  described  as  a  hotel.  Looking  at  the 
mere  contract  itself,  it  might  have  been  free  from  all  ambiguity ; 
because,  in  applying  the  description,  it  must  have  appeared  that 
there  was  an  estate  definitely  described,  and  as  well  known  by  that 
name  as  the  Old  State-House  or  the  Boylston-Market  House.  It 
is  purely  matter  of  description,  and  must  be  established  by  evi- 
dence aliunde.  But  the  facts  show  that  there  is  an  estate  corre- 
sponding in  part  to  the  description,  to  wit,  a  house  known  as  the 
Adams  House  in  Washington  Street,  certain  parts  of  which  had 
been  previously,  and,  up  to  the  time  and  at  the  time  of  the  con- 
tract, used  and  occupied  as  a  hotel ;  and  certain  other  parts  of  it 
used  and  occupied  for  shops  for  the  sale  of  goods,  let  to  separate 
tenants,  with  no  interior  communication,  nor  any  other  connection 
with  the  residue,  as  a  hotel,  than  that  of  relative  position,  being 
supported  by  the  same  foundation  and  sheltered  by  the  same  roof. 
But  this  is  common,  especially  in  cities,  with  entirely  distinct  tene- 
ments or  holdings.  This  description,  therefore,  so  brief  in  its 
terms,  when  applied  to  the  estate  in  question  leaves  it  in  doubt 
whether  these  stores  were  excluded  or  included  in  the  term '  Adams 

1  EUig  V.  Burden,  1  Ala.  N.S.  458. 


CHAP.    X.]  CONSTRUCTION   OP    CONTRACTS.  179 

House,'  In  ascertaining  what  is  parcel,  what  are  tlic  monuments, 
bounds,  abuttals,  names  of  streets  or  places,  it  is  always  compe- 
tent, and  indeed  often  necessary,  to  go  into  parol  evidence.  In 
seeking  for  all  surrounding  circumstances,  to  throw  light  on 
matter  of  description,  the  object  is  to  obtain  from  the  words  used 
in  the  instrument,  in  the  light  of  all  such  circumstances,  the  intent 
and  meaning  of  the  parties.  But,  in  coming  to  apply  the  descrip- 
tion to  the  contract,  there  may  remain  an  uncertainty  in  such 
application  ]  this  constitutes  a  latent  ambiguity ;  and  parol  evi- 
dence is  admissible  to  explain  what  was  intended."  ^(a) 

1  Sargent  v.  Adams,  3  Gray,  72,  76,  77,  78. 

(a)  In  a  late  English  case,  the  doctrine,  attestation.      Soon   after  the    refusal    of 

that  familji  armngements  will   be   upheld,  probate  of  the  will,  A.,  the  elder  brotlier, 

though   resting  upon  agreements  which  declared  to  B.,  the  younger,  that  tlie  iu- 

by   the   general   rules   of  law    would   be  validity  of  the  will  .should  make  no  difier- 

invalid,   is   affirmed   and   somewhat    ex-  ence,  and   that   the   property   should   be 

tended.     It  is  lield  applicable,  not  only  to  "not   mine    or   thine,   but   ours,"  which 

arrangements  for  the  settlement  of  doubt-  language   he   afterwards   repeated.      For 

ful  or  disputed  rights  between  members  twenty  years,  the  brothers  occupied  and 

of  a  family  for   the  preservation   of  its  used   the    whole   estate,    in    common,   as 

peace,  but  also  for  tlie  preservation  of  its  partners,  and  the  widow  never  asserted 

property.     And,  in  such  cases,  a  Court  of  her  rights.     The  partnership  being  tlien 

Equity  does  not  inquire  into  the  quantum  dissolved,  and  B.,  having  afterwards  died, 

of  consideration.     Tims  one  died  in  1831,  his  executors  and  devisees  in  trust  filed 

owning  real  and  personal  estate,  leaving  a  bill  for  partition,  and  judgment  was  ren- 

a  widow  and  two  sons,  A.  and  B.,  also  a  dered  in  their  favor.     Williams  v.  Wil- 

wiU,  by  which  the  sons  took  the  property  liams.  Law  Rep.  (Eng.)  Eq.,  April,  1867, 

equal!}',  after  certain  provisions  for  the  p.  293. 
widow,  but  wliich  was  invalid  for  want  of 


180  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 


CHAPTER   XI. 


TIME   OP   PERFORMING   CONTRACTS. 

1.  Time,  when  of  the  essence  of  the  con-          14.    Necessity  and  effect  of  notice  in  ref- 

tract.  erence  to  time. 

3.  When  not  of  the  essence  of  the  con-          15.     Time,  in  connection  with  delivery  of 

tract.  abstracts. 

5.  Title  at  the  time  of  hearing,  <^c.,  when          19.     Deterioration  from  lapse  of  time. 
sutEcient.                                                                        20.     Construction  of  contracts  as  to  time. 

10.  Waiver,  &c.,  as  to  time. 

1.  Among  the  most  important  incidents  of  contracts  for  the  sale 
and  purchase  of  lands,  is  that  of  the  time  at  which,  or  within  which, 
they  are  to  be  performed.  Perhaps  there  is  no  point,  however, 
upon  which  the  decided  cases,  numerous  as  they  are,  result  in  such 
an  entire  absence  of  any  well-defined  rule  or  rules.  It  is  difficult 
to  extrJict  from  them,  when  taken  together,  any  other  than  the 
broad  and  flexible  proposition,  that  whenever  in  any  particular 
instance  it  is  just  and  reasonable,  under  the  circumstances,  that 
performance  of  a  contract  should  be  insisted  upon  at  the  stipulated 
time,  and  no  extension  of  that  time  sanctioned  by  the  Court,  such 
will  be  the  rule  adopted  ;  and,  under  opposite  circumstances,  the 
contrary  rule.  In  other  words,  the  question  is  one  of  fact,  and  not 
of  law,  although,  inasmuch  as  it  arises,  for  the  most  part,  at  least 
in  connection  with  contracts  concerning  real  estate,  in  courts  of 
equity,  it  is  a  question  of  fact  for  the  Court,  and  not  for  the  jury.^ 
It  has  been  sometimes  held,  however,  that  what  length  of  time  in 
neglecting  to  perform  a  contract  is  unreasonable,  and  would 
authorize  its  rescission  at  the  will  of  the  party  complaining 
of  such  neglect,  is  a  matter  of  law,  to  be  determined  by  the 
Court.2 

2.  Upon  this  subject,  it  has  been  generally  held,  more  especially 
at  Imv,  that  time,  with  reference  to  the  performance  of  a  contract, 

1  Laverty  v.  Hall,  19  Iowa,  526  ;  Wells         2  Ragan  v.  Gaither,  11  Gill  &  J.  472; 
V.  Wells,  3  Ired.  596 ;  Moore  v.  Blake,  1     Gordon  v.  Clarke,  10  Fla.  179. 
BaU  &  B.  68. 


CHAP.    XI.] 


TIME   OP    PERFORMING    CONTRACTS. 


181 


is  not  immaterial ;  ^(a)  but  is  of  the  essence  of  the  contract,  or  a  vital 


1  Burlington,  &c.,  v.  Boesl©r,  15  Iowa, 
555 ;  Alley  v.  Descliamps,  13  Ves.  2'J5 ; 
Harrington  v.  Wlieeler,  4  Ves.  090,  n.  ; 
Guest  t".  Homfrey,  5  Ves.  bl8.  See  Wright 

(n)  In  Fordyce  v.  Ford,  4  Bro.  498,  the 
Master  of  the  Kolls  said,  "  I  hope  it  will 
not  be  supposed,  that  a  man  is  to  enter 
into  a  contract,  and  tliiiik  that  he  is  to 
have  his  own  time  to  make  out  iiis  title." 
So  it  is  said  in  a  later  case  (Porter  v. 
Dougherty,  '25  Penn.,  405-6,  per  Lowrie, 
J.),  "  One  who  desires  to  enforce  specific 
performance  of  a  parol  contract  for  the 
purcliase  of  land  must  present  his  claim 
without  unnecessary  delay,  and  while  af- 
fairs remain  in  such  a  condition  that  per- 
formance can  he  enforced  without  injury  to 
others,  and  especially  he  must  not  himself 
have  done  any  act  that  is  incompatible 
with  his  claim  for  performance,  or  that 
makes  such  a  claim  inequitable."  A  bill 
for  specific  performance  is  an  application 
to  the  discretion,  or  rather  the  extraordi- 
nary jurisdiction,  of  the  Court,  which  can- 
not be  exercised  in  favor  of  persons  who 
have  slept  on  their  rights,  or  acquiesced 
for  a  long  time  in  a  title  and  possession 
adverse  to  their  claim.  Laches  is  as  strong 
against  in  not  prosecuting  as  in  not  defend- 
ing a  suit.  Moore  v.  Blake, 1  Ball  &  Beat.  68. 
Substantially  the  same  principle  applies 
•to  the  attempted  performance  of  a  contrai^t 
before  asajk-r  the  time  appointed.  Thus, 
in  case  of  an  agreement  to  convey  land  at 
a  certain  time,  for  which  the  purchaser 
was  to  assign  two  land  warrants  ;  held,  a 
tender  of  the  warrants  before  the  time 
gave  the  latter  no  rights.  Heed  t;.  lled- 
man,  5  Ind.  409. 

The  now  prevailing  doctrine  upon  this 
subject  (together  with  a  concise  view  of 
the  heretofore  varying  decisions)  is  found 
in  an  opinion  of  Chancellor  Kent,  in  the 
case  of  Benedict  v.  Lynch,  1  Johns.  Ch. 
875.  "  The  first  question  that  naturally 
presents  itself  is,  whether  the  time  was  not 
made  part  of  the  essence  of  the  contract, 
and  whether  the  contract  did  not  become 
void  on  the  failure  of  the  plaintiff  to  make 
the  first  payment  in  1811.  Lord  Thurlow 
is  said  to  have  intimated,  in  Gregson  v. 
Riddle  (cited  in  7  Ves.  268),  that  time 
could  not  be  made  of  the  essence  of  the 
contract  even  by  a  positive  stipulation  of 
the  parties,  but  there  was  no  decision  on 
that  point ;  and  in  other  and  later  cases 
(Lloyd  V.  Collett,  4  Bro.  409;  4  Ves. 
689,  n. ;  Seton  v.  Slade,  7  Ves.  205),  it 
has  been  admitted,  that  the  parties  m:iy 
make  the  time  of  the  essence  of  the  agree- 
ment, so  that,  if  there  be  a  default  at  the 


V.  Howard,  1  Sim.  &  St.  190  ;  Tiernan  v. 
Bohind,  13  Penn.  429  ;  Benedict  r.  Lynch, 
1  Johns.  Ch.  375 ;  Brashier  v.  Gratz,  6 
Wheat.  207. 

day,  without  any  just  excuse,  and  without 
any  waiver  afterwards,  the  Court  will  not 
interfere  to  help  tlie  party  in  default.  The 
case  is  not  analogous  to  that  of  a  mortgage, 
where  the  only  object  of  the  security  is 
the  pa3'ment  of  the  money,  and  not  the 
transfer  of  the  estate  ;  and  it  seems  to  be 
conducive  to  the  preservation  of  good  faith, 
and  the  rights  of  the  parties,  that,  if  a  con- 
tract of  sale  is  expressly  declared  to  be 
vacated  on  non-performance  by  a  given 
day,  the  Courts  should  not  interfere, 
as,  of  course,  to  annul  such  a  jirovision. 
The  opinion  of  Lord  Loughl)orough,  in 
Lloyd  V.  Collett,  contains  a  strong  and 
decisive  argument  upon  this  point.  '  There 
is  nothing,'  he  observes,  '  of  more  impor- 
tance than  that  ordinary  contracts  between 
man  and  man,  which  are  so  necessary  in 
their  intercouise  with  each  other,  should 
be  certain  and  fixed,  and  that  it  should  be 
certainly  known  when  a  man  is  bound, 
and  when  not.  There  is  a  difficulty  to 
compreliend  how  the  essentials  of  a  con- 
tract should  be  difi'erent  in  equity  and  at 
law.  It  is  one  thing  to  say  tlie  time  is  so 
essential,  that,  in  no  case  in  which  tlie  day 
has  by  any  means  been  suflered  to  elapse, 
the  Court  would  relieve  against  it,  and 
decree  performance.  The  conduct  of  the 
parties,  inevitable  accident,  &c.,  might 
induce  the  Court  to  relieve.  But  it  is  a 
different  thing  to  say  the  appointment  of 
a  day  is  to  have  no  effect  at  all ;  and  that 
it  is  not  in  the  power  of  the  parties  to  con- 
tract, that,  if  the  agreement  is  not  exe- 
cuted at  a  particular  time,  they  shall  be  at 
liberty  to  rescind  it.  In  most  of  tlic  cases 
there  have  been  steps  taken.'  '  I  want  a 
case,'  he  saj's,  '  to  prove  that  where  noth- 
ing has  been  done  by  the  parties  this  Court 
will  hold,  in  a  contract  of  buying  and  sell- 
ing, a  rule  that  the  time  is  not  an  essential 
part  of  the  contract.  Here  no  step  had 
been  taken,  from  the  day  of  the  sale  for 
six  months  after  the  expiration  of  the 
time  at  which  the  contract  was  to  be  com- 
pleted. If  a  given  default  will  not  do, 
what  length  of  time  will  do?  An  equity 
arising  out  of  one's  own  neglect !  It  is  a 
singular  head  of  equity.'  It  would  be 
impossible  for  me  to  add  to  the  perspicuity 
and  energy  of  this  reasoning;  and  the 
Lord  Chancellor,  in  that  case,  liehl,  that 
as  the  vendor  liad  omitted  to  complete  a 
purchase  for  six  months,  1)eing  all  that 
time  in  default,  he  was  considered  as  hav- 


182 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XI. 


provision.^     Thus   time   has  been  held  essential,  where   a   party 

1  Falls  V.  Carpenter,  1  Dev.  &  B.  Eq.  277. 


ing  abandoned  the  contract ;  and  he  said 
there  was  no  case  wliere  no  step  had  been 
taken  by  the  one  party,  and  the  otlier  had 
immediately,  when  the  time  liad  elapsed, 
refused  to  perform  the  agreement,  that  a 
performance  had  been  decreed."  Chan- 
cellor Kent  then  proceeds  to  examine 
cases  which  have  been  supposed  to  favor 
a  contrary  doctrine.  "  The  case  of  Ver- 
non V.  Stephens,  2  P.  Wms.  66,  was  a 
bill  brought  by  a  vendee  for  a  specific 
performance  after  repeated  defaults ;  but 
in  that  case  different  pa3'ments  had  been 
made  and  accepted,  and  farther  time  had 
been  given  after  each  default,  by  agree- 
ment in  writing ;  and  the  final  default, 
after  the  last  agreement,  arose  from  the 
deatli  of  the  original  vendor,  and  a  neg- 
lect for  some  time  to  take  out  letters  of 
administration,  so  that  the  last  default 
was  reasonably  accounted  for ;  and  the 
case,  therefore,  proves  nothing  in  favor  of 
a  party  in  default,  without  excuse,  and 
without  a  waiver  from  the  opposite  party. 
The  case  of  Gibson  v.  Patterson,  1  Atk. 
12,  in  which  Lord  Hardwicke  was  sup- 
posed to  have  held,  that  non-performance 
at  the  time  was  very  immaterial,  is  proved 
to  be  most  inaccurately  reported,  and  tliat 
Lord  Hardwicke  made  no  such  decision 
in  that  case,  and  the  facts  admitted  of  no 
such  deduction.  4  Ves.  689,  690,  n. ;  4 
Bro.  497;  13  Ves.  228,  229.  And,  indeed, 
in  another  case  (1  Ves.  4-50),  Lord  Hard- 
wicke lays  down  the  rule  on  this  subject, 
when  he  says,  that  it  is  the  business  of 
this  Court  to  relieve  against  lapse  of  time 
in  the  performance  of  an  agreement,  and 
especially  where  the  non-performance  has  not 
arisen  by  default  of  the  party  seeking  to  have  a 
specific  performance.  So  it  was  also  held, 
in  the  case  of  Hayes  v.  Camyll,  5  Viner, 
538,  pi.  18,  as  early  as  1702,  that  where 
one  person  has  trifled  or  shown  a  back- 
wardness in  performing  his  part  of  the 
agreement,  equity  will  not  decree  a  spe- 
cific performance  in  his  favor,  especially 
if  circumstances  are  altered."  Chancellor 
Kent  then  proceeds  to  cite  the  modern 
EngHsh  cases.  "  In  Pincke  v.  Curteis,  4 
Bro.  329,  the  suit  was  by  the  vendor  for  a 
specific  performance,  and  the  plaintiff  had 
failed,  for  near  a  month  after  the  specified 
day,  to  complete  his  title  ;  but  it  appeared 
tliat  the  delay  arose  because  the  title  de- 
pended upon  the  event  of  a  chancery  suit, 
and  the  vendee  was  apprised  of  this  cause 
of  the  delay,  and  acquiesced  in  it,  and  was 
willing  to  go  on  with  the  purchase,  and  a 
performance   was   consequently  decreed. 


The  Chancellor  said,  that  if  the  vendee 
had  called  for  the  deposit  at  the  end  of 
the  time  limited  for  completing  the  jiur- 
chase,  and  liad  insisted  not  to  go  on  with 
the  purchase,  the  Court  would  not  have 
compelled  him.  The  case  of  Fordyce  v. 
Ford,  4  Bro.  494,  is  to  the  same  effect." 
So  "  a  purchaser,  who  neglects  his  part  of 
the  engagement,  will  be  left  to  his  remedy 
at  law  (if  he  has  any)  though  he  may  have 
paid  part  of  the  purchase-money.  He 
cannot  be  suffered  to  lie  by  and  speculate 
on  the  rise  of  the  estate."  The  Cliancel- 
lor  then  proceeds  to  cite  the  cases  of  Spur- 
rier V.  Hancock,  and  Harrington  v.  Wheel- 
er, 4  Ves.  667,  686;  Milward  v.  Thanet, 

5  Ves.  720,  n. ;  Guest  v.  Hornfray,  6  Ves. 
818;  Seton  v.  Slade,  7  Ves.  265;  Smith 
V.  Burnam,  2  Anst.  527 ;  Paine  v.  Meller, 

6  Ves.  349 ;  Alley  v.  Deschanips,  13  Ves. 
224 ;  and,  upon  a  thorough  examination 
and  analysis  of  the  authorities,  arrives  at 
the  conclusion  above  stated. 

The  same  doctrine  has  been  held  by 
the  Supreme  Court  of  the  United  States. 
In  Brashier  v.  Gratz,  6  Wheat.  533,  Mar- 
shall, C.J.,  says,  "  Tiie  rule  that  time  is 
not  of  the  essence  of  a  contract,  has  cer- 
tainly been  recognized  in  Courts  of  Equity; 
and  there  can  be  no  doubt,  that  a  failure 
on  the  part  of  a  purchaser  or  vendor,  to 
perform  his  contract  on  the  stipulated 
day,  does  not,  of  itself,  deprive  him  of  his 
right  to  demand  a  specific  performance  at 
a  subsequent  day,  when  he  shall  be  able 
to  comply  with  his  part  of  the  engage- 
ment. It  may  be  in  the  power  of  the 
Court  to  direct  compensation  for  the  breach 
of  contract  in  point  of  time,  and  in  such 
case,  the  object  of  the  parties  is  effectuated 
by  carrying  it  into  execution.  But  the 
rule  is  not  universal.  Circumstances  may 
be  so  changed,  that  the  object  of  the  party 
can  be  no  longer  accomplished,  that  he 
who  is  injured  by  the  failure  of  the  other 
contracting  party  cannot  be  placed  in  the 
situation  in  which  he  would  have  stood, 
had  the  contract  been  performed.  Under 
such  circumstances,  it  would  be  iniquitous 
to  decree  a  specific  performance,  and  a 
Court  of  Equity  will  leave  the  parties  to 
therr  remedy  at  law." 

So  in  the  case  of  Garnett  v.  Macon,  6 
Call,  370,  Marshall,  J.,  says,  "  It  has 
been  repeatedly  declared,  both  in  the 
Courts  of  England  and  of  this  country, 
that  time  is  not  of  the  essence  of  a  con- 
tract ;  and  that  a  specific  performance 
ought  to  be  decreed  if  a  good  title  can  be 
made  at  the  time  of  the   decree.     This 


CHAP.  XI.] 


TIME  OF  PERFORMING  CONTRACTS. 


183 


trifles, (a)  or  shows  a  backwardness  in  performance  ;  or  wlicro  the 
property  is  subject  to  constant  variation  in  value,  or  the  nature  of 
the  property  or  the  purpose  of  the  purchase  so  requires  ;  or  there 
has  been  a  change  of  circumstances  ;  or  where  it  is  the  intention 
of  the  parties,  either  at  tlie  time  of  the  contract  or  subsequently, 
to  adhere  strictly  to  the  time  ;  or  where  the  remedies  are  not 
mutual. ^(i)     So  when  time  materially  affects  the  benefit  of  the 


1  Milnor  v.  Willard,  34  111.  38  ;  Doloret 
V.  Rothscliild,  1  Sim.  &  St.  590 ;  Hipmell 
V.  Kniglit,  1  Y.  &  Coll.  419  ;  Canchar  Co., 
Law  Kep.  (Eng.)  Eq.,  May,  18G7,  p.  411 ; 
Westerman  v.  Means,  12  Penn.  97  ;  Page 
V.  Hughes,  2  B.  Men.  441 ;  Nodine  v. 
Greenfield,  7  Paige,  544 ;  Dubois  v.  Baum, 

principle  is  sustained  by  many  decisions, 
and  by  tlie  practice  of  the  Court  of  Chan- 
cery in  England  to  refer  it  to  a  Master,  to 
report  whether  the  title  be  good  at  the 
time.  But  I  do  not  think  that  the  English 
Court  of  Chancery  lias  ever  laid  down  the 
broad  principle,  that  time  was  never  im- 
portant, and  that  an  ability  to  make  a  title 
at  the  time  of  the  decree,  arrested  all 
inquiry  into  the  previous  state  of  things. 
On  the  contrary,  if  a  person  sell  an  estate, 
to  which  he  has  no  title,  he  cannot,  though 
he  should  afterwards  acquire  it,  enforce 
the  contract.  There  is  an  implied  aver- 
ment in  every  sale  made  without  explana- 
tion, that  the  vendor  is  able  to  do  what  he 
contracts  to  do.  If  he  is  not,  and  the 
Tendee  sustains  an  injury  in  consequence 
of  this  inability,  it  would  seem  unreasona- 
ble that  the  contract  should  be  enforced  ; 
it  would  be  the  more  unreasonable,  if  the 
amount  of  the  injury  should  not  be  the 
subject  of  exact  calculation.  It  is  a  gen- 
eral rule,  that  he  who  asks  the  aid  of  a 
Court  of  Equity,  must  take  care  that  his 
own  conduct  has  been  exactly  correct.  It 
would  be  strange,  if  this  general  rule 
should  be  totally  inapplicable  to  time,  in 
■  the  execution  of  a  contract.  If  the  day 
be  carelessly  or  accidentally  passed  over 
without  making  a  conveyance,  and  no 
serious  inconvenience  result  from  the 
omission,  the  objection  would  be  captious, 
and  would  very  properly  be  discounte- 
nanced ;  but  if  the  vendor  was  unable  to 
clear  up  the  title,  until  such  an  alteration 
had  taken  place  in  the  state  of  things,  as 
materially  to  affect  the  parties,  time,  I 
think,  cannot  in  reason  be  deemed  unim- 
portant." 

So  it  is  held  in  Maine,  that  laches  and 
negligence  in  the  performance  of  contracts 
are  not  to  be  countenanced  or  encour- 
aged ;  and  the  party  seeking  performance 
must  show,  that  he  has  not  been  in  fault, 


46  Penn.  537 ;  Pratt  v.  Carroll,  8  Cranch, 
471  ;  Hayes  v.  Caryll,  1  Bro.  P.C.  120; 
6  Vin.  Abr.  538  ;  Rogers  v-  Saunders,  16 
Maine,  92;  Jackson  v.  Ligon,  3  Leigh, 
161 ;  Spurrier  v.  Hancock,  4  Ves.  145 ; 
Patterson  v.  Martz,  8  Watts,  374. 


but  has  taken  all  proper  steps  towards 
performance  on  his  own  part,  and  has  been 
ready,  desirous,  and  prompt  to  perform. 
Shepley,  J.,  says,  "  Time  is  of  the  es- 
sence, where  the  thing  sold  is  of  greater 
or  less  value  according  to  the  effluxion  of 
time,  and  the  sale  of  a  reversion,  and  of 
stock,  are  put  as  examples  of  the  rule.  So 
when  a  house  is  known  to  have  been  pur- 
chased for  a  residence  at  a  particular  time, 
and  when  the  parties  have  by  their  con- 
tract expressly  so  agreed,  time  is  essen- 
tial, and  in  these  cases  no  relief  is  given 
against  the  lapse  of  time.  It  is  not  of  the 
essence  of  the  contract,  where  the  object 
is  security  for  the  payment  of  money  ; 
and  in  the  ordinary  case  of  the  sale  of  an 
estate,  the  -general  object  being  the  sale 
for  an  agreed  sum,  the  time  of  payment  is 
regarded  as  formal,  and  that  stipulation  as 
meaning,  that  the  purchase  shall  be  com- 
pleted within  a  reasonable  time,  regard 
being  had  to  all  the  circumstances.  Time 
is  not,  however,  in  such  cases  to  be  alto- 
gether disregarded  ;  but,  to  entitle  him  to 
rehef  where  time  is  not  essential,  the  party 
asking  it  must  show,  that  circumstances 
of  a  reasonable  nature  have  prevented  a 
strict  compliance,  or  that  it  has  been  occa- 
sioned by  the  fault  of  the  other  party,  or 
that  a  strict  compliance  has  been  waived." 
Rogers  v.  Saunders,  16  Maine,  92,  98. 

(a)  As  where  the  purchaser  has  used 
the  money,  which  should  liave  been  ap- 
plied in  payment,  for  the  erection  of  build- 
ings upon  other  land;  notwithstanding 
losses  in  business  and  destruction  of  build- 
ings by  fire.     Stow  v.  Russell,  3G  III.  19. 

(b)  A.  sells  to  B.  If  in  three  years  B. 
wishes  to  sell,  A.  will  buy  at  the  same 
price.  About  a  month  after  this  time  B. 
requests  A.  to  repurchase.  Held,  B.  had 
no  claim,  there  being  no  mutuality,  and 
time  being  essential.  IVIagoffin  v.  Holt,  1 
Duv.  95. 


184  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 

consideration  or  the  conveyance,^  (a)  or  even  when  either  party 
chooses  that  the  time  shall  be  essential,  and  elects  to  rescind  on 
the  ground  of  delay.^  So  time  is,  to  a  great  extent,  of  the  essence 
of  a  contract  entered  into  with  an  ecclesiastical  corporation.  There- 
fore where  the  plaintiflf  agreed  to  take  a  concurrent  lease  of  a  dean 
and  chapter,  and  to  pay  the  fine  in  January,  but  was  not  ready 
with  the  money  in  March  following ;  a  bill  filed  by  him  for  a 
specific  performance  was  dismissed  with  costs.^  So  where  the 
subject  of  contract  was  a  life  annuity,  and  the  defendant  insisted 
that  time  was  of  the  essence  of  the  contract,  a  motion  for  reference 
to  the  Master  upon  the  title  was  refused.*  So  if  a  contract  relate 
to  wild  and  uncultivated  lands,  where  the  principal  value  is  timber, 
time  may  be  of  the  essence  of  the  contract.^  And  a  bill  for  specific 
performance  of  an  agreement  to  take  a  lease,  for  forty-two  years, 
of  iron  and  coal  mines  and  machinery,  for  the  purpose  of  trade, 
was  dismissed,  on  account  of  delay  on  the  part  of  the  lessor  to 
make  out  his  title,  and  to  give  possession  at  the  time  stipulated.^ 
So  the  distinction  between  conditions  precedent  and  subsequent  is 
applicable  to  the  question  of  time.  The  rule  is,  that  equity  cannot 
relieve  from  the  consequences  of  a  condition  precedent,  unper- 
formed. But  upon  breach  of  a  condition  subsequent,  which  would 
work  a  forfeiture  or  devest  an  estate,  equity,  acting  upon  the 
principle  of  compensation,  will  interpose,  and  prevent  the  for- 
feiture or  devestment,  provided  it  can  be  gtven  with  certainty  in 
damages.  Thus  the  defendant  sold  to  the  plaintiff  a  lot  of  land. 
By  an  agreement  under  the  hands  and  seals  of  the  parties,  the 
plaintiff  covenanted  to  build  within  a  certain  time,  and  give  a  bond 
and  mortgage  for  a  part  of  the  price,  and  pay  the  balance  or  give 
a  bond  and  mortgage  for  the  whole  by  a  specified  day ;  and  the 
defendant  covenanted  to  give  a  deed  on  this  day.  There  was  also 
a  clause,  expressly  showing  that  the  agreement  was  in  all  respects 

1  Kirby  V.  Harrison,  2  Ohio,  N.S.  326.  5  Rogers  v.  Saunders,  16  Maine,  92. 

2  Dominick  v.  Michael,  4  Sandf.  374.  See  Boults  v.  Mitchell,  15  Penn.  371. 

3  Carter  v.  Ely,  7  Sim.  211.  6  Parker  v.  Frith,  1  Sim.  &  Stu.  199. 

4  Withy  V.  Cottle,  Turn.  &  Russ.  78. 

(a)  Equity  will  not  enforce  the  specific  move  his    family    therefrom,   and    seek 

performance  of  an  agreement,  by  which  another  home ;    where  the  defendant  of- 

the  defendant  was  to  convey  to  the  plain-  fered  to  fulfil  his  part  of  the  agreement  on 

tiff,  on  a  day  certain,  a  farm  with  growing  such  day,  but  the  plaintiff  declined  at  that 

crops,  in  the  midst  of  the  growing  season,  time  to  carry  out  the  contract.     Gale  v. 

and  also  transfer  horses  and  cattle,  and  Archer,  42  Barb.  320. 
was  to  vacate  his  place  of  residence,  re- 


CHAP.   XI.]  TIME   OF   PERFORMING   CONTRACTS.  185 

to  be  void,  provided  the  plaintiff  failed  to  perform  any  one  of  the 
covenants.  He  entered,  but,  from  untoward  circumstances,  and 
not  from  any  act  on  the  part  of  the  defendant,  was  not  ready  with 
his  money  or  the  bond  and  mortgage  on  the  day  specified,  but 
made  a  tender  on  the  next  day.  Held,  a  condition  precedent,  and 
that  the  Court  could  not  relieve.^  Or,  as  elsewhere  reported,  the 
contract  was,  that  the  purchaser  should,  on  or  before  a  particular 
day,  build  and  enclose  a  house  upon  the  front  of  the  lot,  or  in 
lieu  thereof  on  that  day  pay  |1,000  towards  the  purchase-money; 
also,  if  he  neglected  or  failed  to  perform  any  of  the  covenants 
therein  contained  at  the  times  limited,  all  his  right  or  interest 
in  the  jDremises,  either  in  law  or  equity,  should  cease :  held, 
the  parties  had  made  the  payment  at  the  day  an  essential  part 
of  the  contract ;  and  the  vendee,  who  had  not  attempted  to  build 
the  house,  and  had  without  any  legal  excuse  failed  to  make  the 
payment  at  the  time  specified,  was  not  entitled  to  a  decree  for 
specific  performance.^  So  where  an  agreement  was  to  be  void,  if 
the  purchaser's  counsel  should  be  of  opinion,  that  a  marketable 
title  could  not  be  made  by  a  certain  time ;  the  counsel  being  of 
that  opinion,  a  bill  by  the  purchaser  for  a  specific  performance, 
with  a  compensation,  was  dismissed,  with  costs  ;  and  an  application, 
afterwards  made  by  the  plaintiff,  that  his  deposit  might  be  set  ofif 
against  the  defendant's  costs,  and  the  surplus  (if  any)  paid  to 
him,  was  refused,  with  costs.^  So  although,  where  a  contract  has 
become  invalid  at  law  by  lapse  of  time,  equity  will  grant  relief,  if 
time  is  not  of  the  essence  of  the  contract ;  yet,  where  the  plaintiff 
has  unjustifiably  omitted  to  execute  his  part  of  the  contract  by  the 
time  appointed,  and  the  defendant  has  not  by  his  acts  acquiesced 
in  that  delay,  the  Court  will  not  compel  specific  performance. 
Nor  will  they  do  it,  where  the  party  who  is  not  bound  lies  by  for 
the  purpose  of  seeing  whether  it  will  be  a  gainful  or  a  losing  bar- 
gain, and  thus  determining  whether  to  abandon  or  enforce  it.* 
So  time  will  be  of  the  essence  of  a  contract  to  convey,  where  the 
parties  declare  the  forfeiture  of  the  contract,  in  case  payments  are 
not  made  according  to  its  terms.  Nor  will  the  Court  relieve  from 
a  forfeiture  or  a  penalty  to  be  incurred  by  the  failing  party ;  as 
where  the  vendee  agreed  to  forfeit  the  first  payment  and  the  con- 

1  Wells  V.  Smith,  2  Etlw.  78.  «  Rogers  v.  Saunders,  16  IMaine,  92 ; 

2  Wells  V.  Smith,  7  Paige,  22.  Shuffleton    v.  Jenkins,    1    Morris,    427 ; 

3  Williams  v.  Edwards,  2  Sim.  78.  Soott  v.  Fields,  8  Ohio,  92, 


186  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XI. 

tract,  in  case  he  did  not  make  the  others  at  the  times  stipulated.^ 
So  where  a  bond  is  given  to  convey  land,  if  a  certain  sum  is  paid 
by  a  particular  day ;  unless  the  money  is  paid  at  that  day,  the 
bond  cannot  be  enforced.^  So,  after  seven  years,  the  Court  will 
refuse  to  decree  specific  performance  of  a  contract,  in  the  part- 
execution  of  which  the  complainants,  or  those  under  whom  they 
claim,  have  expended  large  sums  of  money,  although  the  first 
default  was  on  the  part  of  the  defendant,  and  such  failure  probably 
prevented  an  execution  on  the  part  of  the  complainants ;  circum- 
stances having  so  changed,  that  neither  party  could  derive  the 
anticipated  benefits  from  an  execution  of  the  contract.^  So  a 
motion  for  an  injunction,  to  restrain  an  action  against  an  auc- 
tioneer for  the  deposit,  was  refused,  where  there  had  been  great 
delay  on  the  part  of  the  vendor.*  So  a  bill,  for  specific  perform- 
ance of  articles  for  the  purchase  of  an  estate,  was  dismissed  with 
costs ;  because  the  title  was  not  laid  before  the  vendee's  counsel 
within  the  time  limited.^  So,  upon  sale  of  a  reversion,  part  of  the 
terms  was,  that  the  purchase-money  be  paid  by  a  certain  time ; 
not  being  so,  by  default  of  the  vendee,  the  vendor  was  discharged 
from  his  contract.^  And  on  the  other  hand,  where  the  subject  of 
sale  is  a  tenancy  at  will,  even  a  single  day  has  been  held  to  dis- 
solve the  contract.  Thus  in  an  agreement,  by  a  tenant  at  will  of 
a  public  house,  for  the  sale  of  the  possession,  trade,  and  good-will 
of  the  house,  at  a  fixed  sum,  and  the  stock  and  furniture  at  a 
valuation,  one  of  the  terms  being,  that  possession  should  be  taken 
and  the  money  paid  on  a  certain  day,  time  was  held  of  the  essence 
of  the  contract ;  and  a  purchaser,  who  was  not  in  a  condition  to 
fulfil  his  part  of  the  contract  on  that  day,  cannot  compel  a  specific 
performance,  though  he  was  ready  on  the  following  day.  (It  was 
doubted,  however,  whether  a  Court  of  Equity  will  enforce  the 
performance  of  a  contract  for  the  purchase  of  a  subject-matter,  of 
which  the  good-will  of  a  public  house,  unconnected  with  any  fixed 
interest  in  the  premises,  forms  the  principal  part.^)  So  specific 
performance  will  not  be  enforced  against  the  vendor,  where  the 
vendee  has  neglected  to  comply  with  the  conditions  within  the 

1  Scott  V.  Fields,  8  Ohio,  92.  5  Lewis  v.  Lord  Lechmere,  10  Mod.  503. 

2  Shuffleton  v.  Jenkins,  1  Morris,  427.  ^  Newman  v.  Rogers,  4  Bro.  C.C.  391 ; 

3  Pratt  V.  Carroll,  8  Cranch,  471.  Spurrier  v.  Hancock,  4  Ves.  145;  Coward 
*  Radcliffe    v.    Warrington,    12    Ves.  v.  Odingsale,  2  Eq.  Cas.  Abr.  188,  pi.  5 ; 

326 ;  Lloyd  v.  CoUett,  4  Bro.  469 ;  4  Ves.     Rogers  v.  Saunders,  16  Maine,  92. 
689,  n.  ■?  Coslake  v.  Till,  1  Russ.  376. 


CHAP.    XI.]  TIME    OF    PERFORMING    CONTRACTS.  187 

time  limited,  and  the  vendor  has  in  consequence  sold  and  con- 
veyed to  another  purchaser.  Nor  against  a  subsequent  purchaser, 
for  valuable  consideration,  without  notice,  who  has  acquired  the 
legal  title ;  especially  in  favor  of  a  vendee,  who  has  failed  to  com- 
ply with  his  own  contract,  within  the  time  limited.^  So  where  the 
payment  of  purchase-money,  secured  by  a  bond,  was  subject  to 
the  condition,  that  A.,  or  his  legal  representative,  or  attorney, 
should  on  or  before  a  certain  day  execute  to  the  obligor  a  release 
for  a  certain  portion  of  tlie  land  sold;  and,  if  the  same  could  not 
be  procured,  then  a  deduction  to  be  made  for  that  portion,  at  a 
certain  rate  per  acre  :  held,  that  time  was  of  the  essence  of  the 
contract,  and,  as  the  release  was  not  executed  within  the  time, 
the  stipulated  deduction  must  be  made.^  So  a  vendor  is  not 
bound  to  tender  a  deed  and  demand  payment,  except  for  the  pur- 
pose of  enabling  him  to  affirm  the  contract,  and  to  recover  the 
purchase-money  in  a  suit  at  law.  And  where  the  payment  at  a 
particular  day  is  made  an  essential  part  of  the  contract,  the  vendee, 
in  order  to  obtain  specific  performance,  must  tender  or  offer  the 
money  at  the  time  specified,  upon  the  receipt  of  a  deed.^  And  if 
a  vendee  agrees  to  pay  the  price  within  a  certain  time,  in  con- 
sideration of  which  payment  he  is  to  receive  a  deed ;  he  cannot  at 
law  entitle  himself  to  such  deed,  by  making  a  tender  after  the 
time:*  But  on  the  other  hand,  where  one  contracts  to  convey  land 
to  another,  on  a  certain  day,  in  fee-simple,  and  free  from  incum- 
brance, or  pay  a  certain  sum ;  and  on  that  day  has  not  a  perfect 
title  :  the  vendee  may  recover  such  sum  without  any  tender  of  the 
money  or  of  security  for  it.^  And  if  one,  who  has  bound  himself 
to  execute  a  title  to  land  as  soon  as  he  can  obtain  it,  neglects  for 
more  than  two  years  to  attempt  to  obtain  such  title ;  this  is  a 
breach  of  the  bond,  unless  he  proves  reasonable  diligence  to  pro- 
cure the  title.^  So  where  a  bond  was  given  to  make  title  to  land, 
the  title  to  which  appeared  by  the  bond  to  be  in  a  third  person  ; 
and  the  obligee  lived  for  three  years,  during  which  the  obligor 
acquired  no  title,  nor  attempted  to  do  it :  held,  the  delay  was  an 
unreasonable  one,  and  a  forfeiture  of  the  bond ;  and  the  adminis- 
trator of  the  obligee  was  the  proper  party  to  bring  a  suit  upon  it.'^ 

1  Doan  V.  Gibbes,  1  Bai.  Eq.  371.  5  Holmes  v.  Holmes,  12  Barb.  137. 

2  Westerman  v.  Means,  12  Penn.  97.  ^  Garnett  i'.  Yoe,  17  Ala.  74. 

3  Wells  V.  Smith,  7  Paige,  22.  7  Allen  v.  Greene,  19  Ala.  34. 
*  HiU  V.  Fisher,  34  Maine,  143. 


188  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 

So  where,  in  a  contract  to  buy  and  sell  on  a  particular  day, 
each  promise  is  the  sole  consideration  of  the  other ;  neither  party 
can  maintain  an  action,  without  alleging  a  readiness  to  perform 
on  that  day,  or  an  excuse  for  the  want  of  it,  caused  by  the  act  of 
the  defendant.^  So  where  the  defendant  agreed  to  let  to  the 
plaintiff  a  store,  upon  his  procuring  one  A.  as  surety  for  the  rent 
before  a  certain  day,  which  the  plaintiff  failed  to  do ;  held,  the 
plaintiff  could  not  have  a  decree  for  specific  performance  nor  an 
injunction.^  So  though  no  time  is  fixed,  or  time  is  not  essential, 
the  vendor  cannot  trifle  with  the  purchaser  by  needless  delay,  (a) 
But  the  latter,  not  capriciously,  or  with  a  design  to  surprise,  may 
fix  a  reasonable  time  for  the  conveyance ;  after  which  he  shall 
rescind  the  contract.^  So  where  there  was  a  sale  of  land,  the 
purchaser  agreeing  to  pay  f  100  therefor  by  instalments,  upon  pay- 
ment of  which  the  seller  agreed  to  convey ;  but,  on  failure  of 
payment,  might  re-enter ;  and  all  the  payments  fell  due,  but  none 
were  made;  and,  on  application  of  the  purchaser,  the  time  was 
extended ;  but,  no  payment  being  then  made,  the  seller  gave  the 
purchaser  notice  to  quit :  held,  he  had  a  right  to  rescind  the  con- 
tract, and  by  so  doing  had  terminated  all  the  right  of  the  purchaser 
in  the  premises.^  So  specific  performance  was  refused,  on  the 
laches  and  trifling  conduct  of  the  plaintiff;  the  contract  being  for 
a  sale  to  the  plaintiff,  under  a  bankruptcy,  of  a  reversionary  in- 
terest for  life ;  which  in  the  interval  fell  into  possession.  The 
defendants  having  also  been  in  some  degree  remiss,  the  bill  was 
dismissed  without  costs,  upon  delivering  up  the  agreement.^(6) 

1  Perry  v.  Wheeler,  24  Verm.  286.  4  Barney  v.  Loper,  16  Barb.  629. 

2  Mitchell  V.  Wilson,  4  Edw.  Ch.  697.  5  Spurrier  v.  Hancock,  4  Ves.  145. 

3  Thompson  v.  Dulles,  5  Rich.  Eq.  370. 

(a)  Where  there  was  a  proi^osal  to  sell  but  B.  raised  objections  to  the  title,  and 

a  lot  of  land  for  a  certain  price,  provided  would  not  proceed  further  in  his  purchase 

the  vendee  came  to  close  the  trade  within  until  they  were  cleared.     But  it  appeared 

two  weeks  from  a  certain  day  ;   and  he  that  those  scruples  were  only  to  shuffle  off 

came  at  40  minutes  before  12  o'clock  at  payment  until,  by  the  dropping  of  some 

night,   when  the  vendor  was    abed   and  lives,  his  bargain  would  be  bettered.   One 

asleep,  and  half  a  mile  distant  from  his  life  dropped  in  C.'s  life,  and  two  since, 

place  of  business  :  held',  the  latter  was  not  The  plaintiff,  after  his  father's  death,  in 

bound.     Curtis   v.   Blair,   56    Miss.    309.  1706,  exhibited  his  bill  for  specific  per- 

A.  was  proprietor  of  four  parts  in  seven  formance.     Dismissed,  with  costs.     Cow- 

of  the  manor  of  Glaston.     B.  treated  with  ard  v.  Odingsale,  2  Eq.  Ca.  Abr.  688,  pi.  5. 

C,  who  was  empowered  to  sell  tliis  man-  (6)  Parol    agreement,    in    December, 

or  or  part  of  it,  and  in   1697  contracted  1833,  for  the  purchase  of  lands,  which  the 

with  him  in  writing.     B.  lived  eight  years  vendor   was   to  purchase   of   an    Indian 

afterwards,   and    during    that    time   was  reserve.     Under  the  contract,  the  vendor 

several  times  requested  by  C.  to  complete  received  a  horse  valued  at  $100,  and  was 

the  bargain,  and  pay  the  purchase-money,  also  to  receive  $100  in  December,  1834, 


CHAP.  XI.] 


TIME  OP  PEEFORMING  CONTRACTS. 


189 


3.  There  is,  however,  a  class  of  cases,  which  hold  the  doctrine, 
that  the  time,  at  which  a  contract  is  to  be  performed,  is  not  essen- 


1835,  and  1836,  respectively.  After  tlie 
vendor  purchased,  the  vendee  entered 
and  made  improvements,  but  made  no 
ofler  of  payment,  until  January  or  Feb- 
ruary, 1830  (except  an  ofler  of  the  notes 
of  a  third  person,  due  several  years  after 
the  agreement  was  made) ;  and  the  con- 
tract, as  disclosed  by  the  bill,  was  uncer- 
tain and  contradictory,  and  altogether 
disproved  by  the  answer  and  proof. 
Held,  a  bill  for  specilic  performance, 
brought  by  the  vendee,  should  be  dis- 
missed, with  costs  ;  but  without  prejudice 
to  an  action  at  law,  or  suit  in  equity,  to 
recover  back  money  or  property  delivered 
upon  the  faith  of  the  agreement.  Good- 
win V.  Lyon,  4  Port,  Eq.  297. 

In  May,  1837,  the  defendant,  being 
about  to  raise  his  dam  to  a  height  that 
would  overflow  part  of  the  farm  of  the 
plaintiff",  agreed  to  buy  his  land,  and  to 
pay  for  it  on  the  1st  of  April,  1838,  Avhen 
the  deed  was  to  be  delivered.  It  was 
further  agreed,  that,  as  a  compensation 
for  damages  the  plaintiff  might  sustain 
previous  to  the  conveyance,  he  should 
use  and  occupy  certain  lands  of  the  de- 
fendant. In  the  fall  of  1837,  the  defend- 
ant raised  his  dam,  and  the  plaintilf  took 
possession  of  the  lands.  In  October, 
1838,  the  plaintiflf  tendered  his  deed,  but 
the  defendant  did  not  pay,  and  the  deed 
was  not  delivered.  In  1844,  the  plaintilf 
filed  his  bill,  praying  that  the  defendant 
might  be  decreed  to  pay  by  a  day  to  be 
fixed  ;  otherwise  the  agreement  to  be  can- 
celled, and  the  defendant  directed  to  lower 
his  dam.  Ordered,  that  the  defendant 
pay  by  a  day  fixed,  or  that  the  agreement 
be  cancelled ;  but  an  order  to  lower  the 
dam  was  denied.  Stevens  v.  Ryerson,  2 
Halst.  Ch.  477. 

Agreement,  in  March,  1810,  to  pur- 
chase a  farm,  and  to  pay  $250  in  one  year, 
•  one-third  of  the  residue  in  two  years,  and 
the  other  two-thirds  in  two  successive 
years.  On  receiving  the  payments,  the 
vendor  to  give  a  deed ;  upon  failure  in 
the  payments  or  either  of  them,  the 
agreement  to  be  void.  The  vendee  took 
possession,  and  made  improvements,  but 
made  no  payments ;  and  the  vendor,  in 
October,  1813,  supposing  the  agreement 
void  or  abandoned,  sold  the  farm  to  a 
third  person.  The  vendee  files  a  bill  in 
1814,  on  a  tender  of  the  whole  purchase- 
money,  for  specific  performance.  Bill 
dismissed,  with  costs.  Benedict  v.  Lynch, 
1  Johns.  Ch.  370. 

More  recent  cases  illustrate  the  same 


point,  that  time  is  essential.  Thus,  after 
seventy  years,  specific  performance  was 
refused.  Van  Zandt  v.  New  York,  8 
Bosw.  875. 

Time  is  held  essential  in  equity  as  weU 
as  at  law,  unless  in  case  of  fraud,  account, 
&c.     Heckard  v.  Sayre,  34  111.  142. 

In  case  of  express  agreement  that 
time  shall  be  essential,  it  is  no  excuse  for 
non-payment  of  the  note  given  for  the 
price,  that  the  purchaser  was  occupied 
with  his  duties  as  clerk  of  the  Circuit 
Court,  at  the  maturity  of  the  note,  nor 
that  he  was  poor.  Heckard  v.  Sayre,  34 
111.  142 ;  Milnor  v.  Willard,  ib.  38. 

Where  by  agreement  time  was  to  b6 
essential,  specific  performance  was  re- 
fused, the  last  instalment  being  tendered 
six  days  after  it  fell  due.  Heckard  v. 
Sayre,  34  111.  142. 

Where  time  is  made  of  the  essence  of 
the  contract,  it  is  ground  of  defence 
against  a  bill  for  specific  performance, 
filed  by  the  purchaser,  that,  having  sea- 
sonably tendered  the  price,  which  was 
refused,  he  failed  to  keep  it  in  readiness 
to  meet  a  subsequent  demand  of  the  ven- 
dor. Stow  V.  Russell,  36  111.  19 ;  ace.  Pul- 
sifer  V.  Shepard,  ib.  513. 

In  case  of  a  purchase  of  timber,  to  be 
taken  off"  in  a  certain  time,  no  right  after- 
wards subsists.  Entering  military  ser- 
vice is  no  excuse  in  equity.  Sanders  v. 
Clark,  22  Iowa,  275. 

Where  it  is  provided  that  prompt  per- 
formance by  the  vendee  shall  be  a  condi- 
tion precedent  to  the  sale,  and  time  of  the 
essence  of  the  condition ;  his  rights  ipso 
facto  cease  upon  the  lapse  of  such  time 
"without  fulfilment  of  the  condition.  Mil- 
nor V.  Willard,  34  111.  38. 

Where  a  vendor  agrees  to  convey  cer- 
tain land  on  the  occurrence  of  a  certain 
event,  and  the  price  is  then  to  be  paid ;  in 
an  action  for  the  price,  the  time  of  ten- 
dering the  deed  is  material.  The  vendor 
must  tender  the  deed  in  reasonable  time 
after  the  event.  Sanford  v.  Emory,  34 
111.  468. 

A  suit  in  equity  does  not  lie  to  estab- 
lish an  equitable  title  to  real  estate,  after 
thirteen  years  from  the  time  when  the 
right  of  action  of  the  complainant  accrued, 
without  proof  that  during  that  time  the 
complainant  asserted  any  claim  to,  or  ex- 
ercised any  dominion  over,  the  land  to 
which  the  suit  has  relation ;  if  the  re- 
spondents to  the  complaint,  for  more  than 
the  full  period  prescribed  by  the  statutes  of 
limitation,  held  the  legal  title  to  that  land, 
and  exercised  dominion  over  it,  claiming 


190 


LAW  OP  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 


tial  in  equity,  as  at  law,^(a)  unless  the  parties  have  expressly 

1  Radcliffe  v.  Warrington,  12  Ves.  376  ;  Harrington  v.  Wheeler,  4  Ves.  686 ;  Hearne 
V.  Tenant,  13  Ves.  287. 


openly  and  adversely  to  the  complainant. 
Conway  v.  Kinswortliy,  21  Ark.  9. 

A.  sold  to  B.  a  lot  of  land,  and  guar- 
anteed that  B.  should  within  two  years  be 
reimbursed  out  of  the  sales  of  the  land 
for  the  price  paid,  and  twelve  per  cent 
interest  over  all  taxes  and  assess- 
ments, and  B.  bound  himself  to  divide 
equally  with  A.  all  profits  over  twenty 
per  cent  per  annum  after  payment  of  all 
expenses,  A.  to  have  the  power  to  sell  at 
any  time  within  the  two  years,  and,  if  not 
sold  within  twelve  months,  then  B.  to 
have  the  privilege  of  selling,  and  A.  of 
purchasing  at  B.'s  price.  Held,  B.  was 
bound  to  sell  within  the  last  of  the  two 
years,  if  it  was  practicable,  for  a  sum  suffi- 
cient to  reimburse  himself,  and,  if  unable 
to  do  this,  he  should  have  offered  the  land 
to  A.  at  that  price,  and,  failing  to  do  this, 
he  must  be  held  to  have  elected  to  hold  the 
laud  at  the  price  paid,  and  A.  was  bound 
to  take  the  land  if  offered  to  him  within 
the  two  years,  but  not  otherwise ;  and, 
this  not  having  been  done,  there  was  no 
breach  of  covenant  in  A.'s  subsequent 
refusal  to  take  it.  Reeves  v.  Forman,  26 
lU.  313. 

(a)  It  will  be  seen,  that  in  some  cases 
the  same  principle  has  been  adopted  by 
courts  of  law.  In  the  case  of  Waters  v. 
Travers,  9  John.  456,  Spencer,  J.,  says, 
"  Generally  speaking,  the  obligation  of  an 
agreement  binds  the  parties  from  the  mo- 
ment it  is  entered  into  ;  and  place  and 
time  are  circumstances  affecting  only  the 
performance  of  the  engagement ;  and  do 
not  import,  in  a  Court  of  Equity,  condi- 
tions by  which  the  parties  are  to  be  con- 
sidered as  contracting  on  the  ground  of  a 
strict  compliance,  but  are  mere  circum- 
stances admitting  of  compensation.  The 
appellant  and  Wisner  bound  themselves 
to  give  a  conveyance  on  or  before  the  1st 
of  December,  at  which  time  the  respon- 
dent was  to  secure  the  purchase-money. 
These  acts  were  to  be  concurrent.  The 
conveyance  must  necessarily  have  pre- 
ceded tlie  security.  The  laches  in  not 
perfecting  the  contract  is  certainly  as 
much,  if  not  more,  attributable  to  the  ap- 
pellant than  to  the  respondent.  The 
lapse  of  time,  in  a  case  like  the  present, 
where  no  material  inconvenience  has  been 
suffered  by  the  appellant,  can  be  urged 
only  on  the  ground  that  the  agreement 
has  lain  dormant,  and  that  this  is  evidence 
of  the  abandonment  of  it  by  the  parties. 
Had  the  respondent  entered  as  a  tenant 


originally,  and  then  made  the  agreement, 
and  continued  to  possess,  the  possession 
might  have  been  viewed  as  a  tenancy,  and 
it  might  have  been  insisted  that  the  pos- 
session was  not  an  afiirmance  of  the  agree- 
ment. But  as  the  case  is,  the  continuance 
of  the  possession,  by  the  tacit  consent  of 
the  appellant,  until  he  instituted  the  eject- 
ment suit,  was  a  constant  and  continued 
afiirmance  on  the  part  of  the  appellant 
that  the  holding  was  under  the  agree- 
ment. The  counsel  have  insisted,  as  a 
notorious  fact,  that  the  lands  have  appre- 
ciated. On  this  point  we  have  no  evi- 
dence ;  but  if  it  be  admitted,  are  we  to 
suppose  that  the  appreciation  of  the  land 
is  greater  than  the  interest  of  the  money, 
in  case  no  payment  has  been  made^  I 
cannot  say  so ;  and,  therefore,  in  the 
absence  of  proof  to  the  contrary,  I  recur 
to  the  observation,  that  the  appellant  will 
suffer  no  material  inconvenience  from  the 
lapse  of  time." 

A  lease  provided,  that  the  lessee  or  his 
wife  might  purchase  the  premises  at  any 
time  within  twelve  months  for  a  certain 
sum,  and,  upon  payment  thereof  and  all 
arrears  of  rent,  that  the  lessor  would  exe- 
cute a  conveyance.  The  lease  was  dated 
January  1,  1849.  The  lessee  occupied 
and  paid  rent  during  his  life,  and  his 
widow  paid  rent  for  some  time  after. 
She  subsequently  notified  the  lessor  that 
she  was  prepared  to  pay  the  money  and 
desired  a  deed,  but  he  refused  to  give 
one,  on  the  ground  that  tl>e  proper  time 
had  gone  by,  and  afterwards  ejected  her 
by  a  suit.  She  then  brought  the  present 
action,  atler  having  on  the  9th  of  October, 
1852,  tendered  a  deed  for  execution  and 
the  purchase-money.  Held,  that  time 
was  not  of  the  essence  of  the  contract. 
D'Arras  v.  Keyser,  20  Penn.  249.  Wood- 
ward, J.,  says  (p.  254),  "Mere  default  in 
the  payment  of  money  at  a  stipulated 
time  admits,  in  general,  of  compensation, 
and  hence  time  of  payment  is  seldom 
treated  as  of  tlie  essence  of  real  contracts. 
Parties  may  make  it  so  by  express  agree- 
ment, but  there  is  nothing  on  the  face  of 
this  contract,  or  in  the  attending  circum- 
stances, to  indicate  the  intention  of  these 
parties  to  make  time  essential.  The  cove- 
nant for  title  was  part  and  parcel  of  the 
lease,  and  the  term  fixed  was  one  year, 
yet  the  lessees  were  permitted  to  hold  over, 
and  rent  was  received  without  objection. 
From  this  the  law  would  imply  a  renewal 
of  the  lease  from  year  to  year,  and  put  the 


CHAP.  XI.]  TIME   OP    PERFORMING    CONTRACTS.  191 

agreed  that  it  should  be  so  regarded, (a)  or  unless  it  follows  from 
the  nature  and  purposes  of  the  contract,^  and  that  relief  against 
the  lapse  of  time  is  in  the  discretion  of  tlie  Court,  upon  the  circum- 
stances.2  Thus  where  an  agreement  for  the  sale  of  land  was  suf- 
fered to  remain  unexecuted  for  fourteen  years,  the  vendee  having 
continued  in  possession,  the  Court,  under  the  circumstances  of  the 
case,  decreed  a  specific  performance  of  the  contract.^  So  where  an 
exchange  of  lands  is  made,  and  no  money  is  to  be  paid,  and  pos- 
session of  the  several  tracts  is  taken  pursuant  to  the  contract,  a 
delay  of  ten  years  is  no  bar  to  specific  performance.*  So  time  is  not 
of  the  essence  of  the  following  bond  to  make  title :  "  If  the  said 
obligee  shall  pay  off  the  said  bonds  as  they  fall  due,  then,  when 
the  last  of  said  payments  shall  be  made,  the  said  obligor  shall  exe- 
cute "  the  deed.^  So  where  a  contract  for  the  sale  of  land  is 
proved,  and  an  uniform  possession  of  part  under  it,  length  of  time 
is  no  bar  to  a  specific  performance.^  So  where  the  assignee  of  a 
lease  for  ten  years,  with  the  privilege  of  then  taking  the  property 
at  a  stipulated  price,  makes  considerable  improvements  thereon, 
indicating  an  intention  to  purchase  ;  the  lessor  dies,  and  the  heirs 
are,  some,  infants,  others  non-residents,  and  the  administrator  re- 
fuses to  receive  the  purcliase-money  ;  and  no  suit  is  brought  for 
twenty-one  days  after  the  expiration  of  the  lease :  it  violates  no 
principle  of  equity  or  justice,  to  say  there  is  uo  forfeiture  of  the 
right  to  purchase  and  hold  the  premises.'''  So  upon  a  bill  in 
equity,  to  enforce  specific  execution  of  a  contract  to  convey  lands, 
if  the  complainant  has  made  large  and  valuable  improvements, 
with  the  knowledge  and  acquiescence  of  the  defendant,  the  Court 
will  decree  specific  execution,  upon  payment  of  the  agreed  price 
with  interest,  although  payment  has  been  delayed  for  an  unreason- 
able time,  as  for  two  years  ;  the  vendor  having  suffered  no  damage 
which  interest  will  not  compensate.^(5).     So  the  execution,  by  the 

1  Jones  V.  Robbins,  29  Maine,  351.  ^  Somerville   v.   Trueman,   4    Har.    & 

2  Wells  V.  Wells,  3  Ired.  596.  McH.  43. 

3  Waters  v.  Travis,  9  John.  450.  ^  Page  v.  Hughes,  2  B.  Mon.  441. 

4  Stretch  v.  Schenck,  23  Ind.  77.  «  Mason  v.  Wallace,  3  McL.  148.     See 

5  White  V.  Butcher,  6  Jones,  Eq.  231.  Porter  v.  Wallace,  1  McL.  77. 

landlord  to  his  notice  when  he  meant  to  delay  which  the  plaintiff  could  avoid,  and 

determine  it.     It  is  impossible  to  regard  the  defendant  acquiesced  in  what  there 

the  year  mentioned  in  the  instrument  as  was,  and  partially  caused  it  himself. 
any  more  of  the  essence  of  the  contract  of        (a)  That  even  this  is  not  conclusive,  see 

sale  than  it  was  of  the  lease."  Richmond  v.  Robinson,  12  Midi.  193. 

Ace.    Morgan   v.    Scott,    26   Penn.    53,         (h)  The  owner  of  land  made  a  written 

more  especially  where  no  precise  time  is  agreement  to  sell  it  for  $300,  one-third  to 

fixed  in  the  contract,  where  there  was  no  be  paid  down  and  the  residue  in  one  and 


192 


LAW   OF  VENDORS    AND   PURCHASERS.  [CHAP.    XI. 


vendor,  of  a  mortgage  on  the  premises,  after  the  agreement  to  sell, 
is  not  a  ground  to  avoid  the  contract,  provided  it  be  removed 


two  years,  with  interest ;  possession  to  be 
delivered  immediately  ;  and,  if  tlie  pur- 
chaser should  make  default  in  either  of 
the  payments,  the  vendor  to  be  dis- 
charged, and  the  purchaser  to  forfeit  all 
previous  payments,  and  deliver  up  pos- 
session. The  vendee  took  possession, 
made  valuable  improvements,  and  paid 
the  first  two  instalments  at  the  times  spe- 
cified. He  then  assigned  his  contract  to 
the  complainant,  who  took  possession, 
but  did  not  make  the  last  payment  at  the 
day  specified ;  nor  was  he  called  on  for 
payment,  nor  did  he  ofl^er  a  conveyance 
upon  payment ;  but,  a  few  days  after- 
wards, he  tendered  the  money,  and  de- 
manded a  conveyance.  Held,  time  was 
not  of  the  essence  of  the  contract,  and  the 
complainant  was  entitled  to  specific  per- 
formance. Edgarton  v.  Peckham,  11 
Paige,  352. 

In  1796,  in  Connecticut,  E.  agreed  to 
sell  C.  certain  lots  of  land  in  New  York, 
for  which  he  duly  executed  and  acknowl- 
edged a  deed  of  conveyance.  C.  paid 
part  of  the  consideration,  and  gave  notes 
for  tlie  residue ;  but,  not  having  security 
for  them  at  hand,  the  deed  was  left  in  the 
hands  of  H.  as  an  escrow,  until  security 
should  be  furnished.  E.  died  in  1800,  the 
notes  not  having  been  paid  or  secm-ed. 
C,  being  indebted  to  the  complainant, 
made  to  him  a  deed  of  these  lots ;  inform- 
ing him  then  or  afterwards,  that  he  had 
no  title,  and  that  the  deed  had  been  left 
with  H.  as  security.  After  this  informa- 
tion, the  complainant  made  indirect  over- 
tures to  get  the  deed  from  H.,  and  finally 
succeeded.  E.  or  his  representatives 
caused  the  true  state  of  the  case  to  be 
made  known  to  the  complainant,  and  the 
amount  justly  due  on  the  notes  to  be  de- 
manded of  him,  which  he  refused  to  pay, 
relying  on  his  title.  The  complainant 
took  possession,  and  sold  the  lands  with 
warranty.  In  1820,  the  heirs  of  E.  com- 
menced ejectments  for  the  lands,  which 
the  complainant  defended.  On  trial,  H. 
proved  the  delivery  of  the  deed,  as  he 
had  before  explained  the  fact  to  the  com- 
plainant ;  and,  the  Judge  being  of  opinion 
that  the  deed  was  an  escrow,  verdicts 
were  found  for  the  lessors  of  the  plaintitf, 
the  defendants  in  this  suit,  upon  which 
the  complainant  filed  this  bill.  Held,  this 
was  in  substance  the  ordinary  contract 
for  a  sale  of  lands,  when  the  title  remains 
in  the  vendor  as  security,  aud  really, 
though  not  in  form,  a  morUjwje  ;  that  time 
was  not  of  the  essence  of  the  contract,  but 
compensation  might  be  made,  being  the 


amoimt  of  interest ;  that,  though  the  con- 
duct of  the  complainant  was  immoral  and 
reprehensible,  and  though  the  delay  of 
both  parties  had  been  great,  yet  those 
circumstances  did  not  deprive  the  com- 
plainant of  rights  previously  acquired ; 
and  that  the  complainant  was  entitled  to 
relief,  upon  payment  of  the  principal  due 
on  the  notes  witli  interest,  costs,  and  ex- 
penses both  at  law  and  in  equity  ;  includ- 
ing not  only  legal  costs,  but  all  reasonable 
exjienses  of  every  kind,  which  the  litiga- 
tion had  imposed  on  the  defendants.  Leg- 
gett  V.  Edwards,  Hopk.  530. 

In  an  action  of  ejectment,  it  appeared 
that  one  G.,  under  whom  the  defendant 
claimed,  was  let  into  possession  twenty- 
two  years  before  action  brought,  by  virtue 
of  a  contract  with  P.,  for  the  purchase  of 
an  allotment  accruing  to  P.,  under  an  in- 
closure  act,  which  provided  that  a  pur- 
chaser let  into  possession  of  an  allotment 
should  have  the  same  rights  as  the  ven- 
dor. G.  paid  interest  on  a  portion  of  the 
purchase-money  for  some  years,  but  never 
completed  the  purchase.  Held,  that  even 
after  a  lapse  of  twenty  years  his  possession 
was  not  adverse  to  P.'s  title  ;  also,  that  it 
did  not  lie  in  the  mouth  of  G.,  or  any 
claiming  under  him,  to  raise  an  objection 
to  P.'s  title,  that  the  Commissioners  of 
Inclosure  had  made  no  formal  award. 
Tindal,  C.J.,  says  :  "  It  has  not  been  con- 
tended that,  under  such  circumstances, 
Payne  himself  might  not  have  ejected 
Gegg  within  twenty  years ;  and  I  want  to 
see  how  his  possession  could  be  deemed 
adverse,  unless  it  could  be  shown  he  re- 
fused to  quit  after  notice,  or  refused  to 
pay  interest."  With  respect  to  the  allot- 
ment, he  proceeds  to  remark  :  "  The  au- 
thority given  to  the  commissioner  was  to 
put  Gegg  in  possession  ;  according  to  the 
language  of  that  authority,  the  allotment 
must  have  been  made  before.  Now, 
under  the  twenty-third  section  of  the  act, 
a  party  who  has  agreed  to  purchase  shall, 
if  let  into  possession,  have  the  same  rights 
as  the  vendor ;  and  it  is  said  that,  as  no 
award  has  been  made  by  Avhich  the  prop- 
erty was  given  to  Payne,  he  can  now  have 
no  title  to  recover  in  ejectment.  To 
which  the  first  answer  is  this,  that,  if  this 
argument  be  well  founded,  it  was  as  strong 
at  the  end  of  a  fortnight  as  at  the  end  of 
twenty  years  ;  and  yet  no  one  could  con- 
tend that  the  vendor  might  not,  at  the 
time,  have  turned  Gegg  out  of  posses- 
sion. Again,  if  it  be  established  that 
Gegg  was  let  in  under  the  authority 
of  Payne,  it  does  not  he  in  Gegg's  mouth 


CHAP.    XI.]  TIME   OF   PERFORMING    CONTRACTS.  193 

before  lie  is  called  on  to  make  title,  or,  at  least,  before  tbc  bill  for 
specific  execution  is  filed.^  So  specific  performance  of  an  agree- 
ment for  the  sale  of  an  annuity,  to  commence  from  the  date  of  the 
agreement,  and  to  continue  for  three  lives,  to  be  named  by  the 
grantee,  was  decreed,  where  the  lives  had  not  been  named,  the 
delay  having  been  occasioned  by  the  grantor.^  So  upon  a  bill  in 
equity,  to  enforce  specific  execution  of  a  contract  to  convey  lands, 
if  the  complainant  has  made  large  and  valuable  improvements, 
with  the  knowledge  and  acquiescence  of  the  defendant,  the  Court 
will  decree  specific  execution,  upon  payment  of  the  agreed  price 
with  interest,  although  payment  has  been  delayed  for  an  unreason- 
able time.^  So  the  execution,  by  the  vendor,  of  a  mortgage  on 
the  premises,  after  the  agreement  to  sell,  is  not  a  ground  to  avoid 
the  contract,  provided  it  be  removed  before  he  is  called  on  to  make 
title,  or,  at  least,  before  the  bill  for  specific  execution  is  filed.*  So 
a  vendor  suffered  the  land  to  be  sold  for  taxes.  The  purchaser 
delayed,  and  finally  refused  to  complete  the  purchase,  but  solely 
on  the  ground  of  inability  to  pay ;  and  he  now  sued  to  recover 
back  what  he  had  already  paid.  Held,  as  during  all  this  time  the 
vendor  had  a  right  to  redeem,  and  he  was  ready  and  willing  to 
complete  the  contract,  he  was  not  in  default.^  So  the  fact,  that 
the  vendor  has  suffered  the  purchaser  to  remain  in  possession,  and 
received  payments  from  him,  from  time  to  time,  down  to  a  short 
period  previous  to  the  filing  of  a  bill  by  the  purchaser  for  specific 
performance,  is  strong  evidence  that  neither  party  intended  to 
make  the  time  an  essential  part  of  the  contract ;  and  the  vendor 
will  not  be  allowed  to  insist  upon  a  forfeiture,  on  that  ground, 

1  Tiernan  v.  Koland,  15  Penn.  429.  3  Mason  v.  "Wallace,  4  McL.  77. 

'^  Pritcliard  v.  Ovey,   1  Jac.  &  Walk.        *  Tiernan  v.  Roland,  1-5  Penn.  429. 
396.  5  Marsh  v.  Wyckoff,  10  Bosw.  2j2. 

to   say   that    Payne    had    no    title.     He  trespasser  till  he  has  refused  to  quit  after 

must   stand   or  fall   by    the   title   of  the  demand  made   upon   him."      "  Suppose, 

party  under  whom   he   obtained   posses-  that  instead  of  a  sale  in  fee,  —  and  Ave 

sion ;  and  the  twentj' -third  section  of  the  have  no  evidence  what  interest  was  sold 

act  was  inserted  with  a  different  view;  liere, — the  agreement  was  for  a  sliort  de- 

not  to  raise  questions  between  the  vendor  mise,  the  party  claiming  under  such  an 

and   vendee,    but    that    the    vendee,    as  agreement  would  be  a  person  interested 

against  others,  might  stand  clothed  with  under  the  act,  and  entitled  to  be  let  into 

the  same  right  as  upon  an  allotment  made  possession  ;  and  yet  is  it  to  be  contended 

to  himself."     Bosanquet,  J.,  says  :  "  An  that  he  has  all  tlie  rights  of  an  owner  in 

agreement  was  made  tor  the  purchase  of  fee,  wlien  he  is  let  in  only  for  a  term  ? 

the  property,  and  the  vendee  continued  Here  the  interest  of  the  party  occu])ying 

to  pay  interest  for  several  years  after  hav-  was  only  a  permissive  interest,  inferior  to 

ing  been  let  into  possession  by  the  .vendor,  that  of  a  lessee."     Doe  v.  Edgar,  2  Bing. 

Being  so  let  into  possession,  he  is  not  a  N.  498,  502-4. 

13 


194 


LAW    OF   VENDORS    AND   PURCHASERS.  [CHAP.    XL 


And  although  he  is  imable  to  make  a  title  to  the  whole  of  the  land, 
he  will  be  required  to  perform  his  contract,  so  far  as  it  can  be  per- 
formed, notwithstanding  the  lapse  of  time,  unless  he  has  been  pre- 
judiced by  the  delay. ^  And  though  the  vendor  does  not  produce 
his  deeds,  or  tender  a  conveyance,  within  the  time  limited  by  the 
articles,  the  Court  may  still  decree  a  sale.^  So,  by  the  terms  of  an 
auction  sale,  the  title-deeds  were  to  be  produced  by  a  certain  day, 
and  were  not  then  ready,  but  the  purchaser  received  them  after- 
wards, without  objection.  Held,  he  could  not  afterwards,  on  dis- 
liking the  title,  object  to  the  delay .^  So  where,  by  the  terms  of  an 
auction,  the  sale  is  to  be  completed  by  a  certain  day  ;  yet,  if 
neither  party  takes  any  step  to  quicken  the  other,  till  it  becomes 
impossible  to  execute  the  agreement  by  the  day ;  the  time  is 
waived,  and  equity  will  interfere,  to  prevent  the  purchaser  from 
taking  advantage  of  it  at  law.'*(a) 


1  Voorhees  v.  De  Meyer,  2  Barb.  37. 

2  Gibson  v.  Patterson,  1  Atk.  12. 


3  Smith  V.  Burnham,  2  Anstr.  527. 
*  Jones  v.  Price,  3  Anstr.  924. 


(a)  By  the  terms  of  a  sale,  the  purchaser 
was  to  pay  part  of  the  price  on  signing 
the  agreement,  and  tlie  rest  on  completion 
of  the  purchase  "  on  the  11th  of  October, 
from  which  time  the  purchaser  was  to  be 
entitled  to  the  rents  and  profits  ;  "  but  if 
the  purchase  should  not  be  completed  by 
the  11th  of  October,  he  should  pay  inter- 
est until  such  completion.  The  vendor  to 
deliver  an  abstract  of  title  within  fourteen 
days  from  the  sale,  and  deduce  a  good 
title.  The  sale  was  on  July  9th,  and  the 
abstract  delivered  on  the  14th.  It  then 
appeared,  that  there  were  two  mortgages 
on  the  estate,  and  the  mortgagees  had  not 
received  the  usual  six  months'  notice  of 
redemption ;  that  some  of  them  were 
dead,  and  letters  of  administration  de  bonis 
non  were  requisite  in  the  case  of  one  of 
them  ;  also  that  a  deed  of  declaration  of 
trust  by  parties  beneficially  interested  in 
the  mortgage  was  required.  For  these 
and  other  causes,  a  conveyance  could 
not  be  made  by  the  11th  of  October,  and 
the  purchase  was  com2)leted  in  the  follow- 
ing April.  Held,  the  vendor  did  deduce 
an  abstract,  and  show  a  good  title.  Savo- 
ry V.  Underwood,  28  Eng.  Law  &  Eq. 
152. 

So  a  delay,  amounting  to  apparent  neg- 
ligence, may  be  explained ;  and,  under 
special  circumstances,  as  where  there  is  a 
dilBcidty  about  the  title,  presents  no  bar 
to  relief  Bill  for  specific  performance. 
The  defendant,  in  1822,  agrees  with  the 
plaintifl'  to  sell  him  certain  real  estate  for 


§600,  "  to  be  paid  in  one  year,  upon  re- 
ceiving a  good  title."  The  plaintiff  en- 
ters, but  is  soon  after  ousted  of  part  of  the 
premises  by  one  claiming  under  an  ad- 
verse title  ;  upon  which  the  defendant 
brings  ejectment  against  the  latter ;  and 
the  contract  remains  imexecuted  until 
1829,  when  the  plaintiff  tenders  the  money 
to  the  defendant,  and  demands  a  deed. 
Held,  the  plaintiff  was  not  barred  by  mere 
lapse  of  time.  King  v.  Morford,  1  Saxt. 
Ch.  274.  So  A.  contracts  for  the  pur- 
chase of  an  estate,  and  is  let  into  posses- 
sion. The  estate  being  greatly  incum- 
bered, A.  pays  off  some  of  the  incum- 
brances. Great  delay  is  used  on  the  part 
of  the  vendor  in  clearing  other  incum- 
brances, and  making  good  the  title. 
Held,  the  purchaser  shall  not  for  that 
reason  be  discharged  from  his  contract. 
Smith  V.  Dolman,  6  Bro.  P.  C.  291. 

A  contract  was  made  for  the  sale  of 
land,  payment  of  the  price  to  be  made  to 
a  third  person,  who  held  a  mortgage  from 
the  vendor  for  the  same  amount.  Before 
the  whole  of  the  money  had  been  paid, 
the  vendor  declared  the  contract  forfeited, 
payment  not  having  been  made  within 
the  specified  time.  The  balance  of  the 
money  was  subsequently  paid  by  the  pur- 
chaser. Held,  upon  a  bill  in  equity  to 
enforce  the  contract,  where  it  appeared 
that  the  contract  was  designed  to  provide 
for  payment  of  the  mortgage,  that  the 
contract  had  been  substantially  complied 
with  by  the  purchaser,  and  that  the  ven- 


CHAP.  XI.]       TIME  OF  PERFORMING  CONTRACTS.  195 

4.  Nor  will  the  circumstance,  that,  at  the  time  of  filing  a  bill  for 
specific  performance,  the  vendor  is  unable  to  make  a  title  to  the 
whole  of  the  land  sold,  relieve  him  from  a  performance  of  his  con- 
tract, so  far  as  it  can  be  performed,  any  more  than  it  would  have 
done  at  the  time  the  purchase-money  became  due;  unless  something 
has  occurred  since  that  time,  by  reason  of  the  purchaser's  delay, 
which  has  placed  the  vendor  in  a  worse  situation  than  he  would 
have  been  in,  had  he  been  called  upon  to  perform  his  contract  at  the 
time  stipulated. 1 

5.  The  same  principle,  that  time  is  not  of  the  essence  of  the 
contract,  has  also  received  other  applications.  Thus  if,  on  a  bill 
for  specific  performance  by  the  vendor,  a  good  title  can  be  made 
before  or  when  the  cause  comes  on  upon  further  directions,  specific 
performance  will  be  decreed.  So  if  a  title  is  procured  before  the  re- 
port, or  at  the  trial,  or  before  or  at  the  final  decree  ;2  more  especially 
where  no  injury  has  arisen  from  the  delay .^  So,  where  the  parties 
have  not  made  time  of  tlie  essence  of  the  contract,  and  the  delay  is 
not  the  fault  of  the  vendor,  but  is  occasioned  by  the  state  of  the 
title,  unknown  at  the  sale  ;  the  invariable  inquiry  of  the  Chancellor 
is,  whether  the  vendor  is  able  to  convey  at  the  hearing.'^  So  a 
purchaser  cannot  insist  on  being  discharged  upon  a  report  of  de- 
fective title,  if  capable  of  being  made  good  within  a  reasonable 
time  ;  as  to  which  the  vendor  will  be  put  under  terms.^  Thus,  in 
some  cases,  the  vendee  may  claim  costs,  if  not  himself  in  fault.^ 

1  Voorhees  v.  De  Meyer,  2  Barb.  37.  3  Dutch,  &c.  v.  Mott,  7  Paige,  78.     But 

2  Luckett  V.  Williamson,  37  Mis.  388;     see  Nodine  v.  Greenfield,  7  Paio'e,  545. 
Baton  V.  Rogers,  6  Madd.  256 ;  Mortlock  4  Cotton  v.  Ward,  3  Monr.  313. 

V.  Buller,  10  Ves.    292  ;    Bennet,  &c.  v.  5  Coffin  v.  Cooper,  14  Ves.  205. 

Carey,  3   Brown   Ch.    390 ;    Hepburn  v.  ^  Dutch,  &c.  v.  Mott,  7  Paige,  78.     See 

Auld,  5  Cranch,  262.  Cane  v.  Allen,  2  Dow,  289. 

dor  should  be  decreed  to  convey  the  land  it  might  be,"  payable,  &c.  Held,  tlie 
to  him.  So,  though  it  did  not  appear  by  time  witliin  which  the  land  was  to  be 
the  bill,  that  the  purchaser  had  paid  taxes,  measured  was  not  a  material  part  of  the 
as  required  by  the  contract.  Ilichmond  v.  contract ;  that  tlie  defendants  were  not 
Eobinson,  12  Mich.  193.  estopped  from  claiming,  that  tlie  quantity 
The  defendants  agreed  to  pay  the  plain-  of  land  conveyed  at  $60  per  acre  was 
tiff  §1,800  for  her  interest  in  the  property  26t;Vo  acres,  instead  of  24  acres  merely 
and  estate  of  C,  her  deceased  father,  and  because  they  omitted  to  measure  it  "  witli- 
she  was  to  take,  in  part  payment  therefor,  in  ten  days  ;  "  that  the  li\ct  that  the  land 
a  piece  of  land,  at  $60  per  acre,  which  the  was  described  in  the  deed  by  metes  and 
defendants  conveyed  to  her,  and  which  bounds,  and  as  "containing' tweiitv-four 
they  estimated  to  contain  twenty-four  acres  be  the  same  more  or  less,"  did  not 
acres,  and  which  was  to  be  measured  prevent  the  defendants  from  claiminij  an 
"  within  ten  days  "  from  the  date  of  the  allowance  for  the  excess  ;  and  that  the  de- 
contract;  and  the  defendants  were  to  give  fendants,  in  an  action  upon  the  contract, 
their  promissory  note  to  the  plaintiff,  for  were  entitled  to  be  allowed  for  the  excess. 
"  tlie  balance  "  of  the  $1,800,  "  whatever  Clute  v.  Jones,  28  N.Y.  (1  Titla.),  280. 


196  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XI. 

And  the  purchaser  may  claim  interest  upon  the  purchase-money 
paid,  from  the  time  of  demanding  a  deed.^  So  relief  is  granted 
against  forfeiture  of  the  deposit,  upon  putting  the  other  party  in 
the  same  position,  as  if  the  contract  had  been  performed  at  the 
time  agreed.^  So  specific  performance  was  decreed  ;  the  abstract, 
though  delivered  very  late,  and  under  a  notice  that  the  vendee 
would  insist  on  his  deposit,  with  interest,  if  the  title  should  not  be 
made  out  and  possession  delivered  by  the  time  of  payment,  having 
been  received  and  kept  without  objection  ;  and  the  vendee,  upon 
the  construction  and  the  circumstances,  not  being  entitled  to  insist 
on  time  as  the  essence  of  the  contract.  So  where  the  vendor 
declines  executing  the  contract,  upon  the  ground  that  he  is  unable 
to  give  a  good  title,  and  the  purchaser  files  his  bill  for  specific  per- 
formance, or  to  rescind ;  if  the  defendant  is  able  to  give  a  good 
title  at  the  time  of  the  decree,  the  complainant  will  be  compelled  to 
accept  it.^  But  when  the  vendor,  having  executed  the  contract  as 
far  as  he  is  concerned,  sues  for  the  purchase-money  ;  the  defendant 
may  show,  that  he  refused  to  convey  at  the  time  fixed,  and  he  will 
not  be  compelled  to  accept  the  deeds  at  the  time  of  the  hearing  or 
decree.*  And  though,  in  general,  the  vendor  may  compel  specific 
performance  if  able  to  make  a  title  at  the  hearing ;  yet,  where  he  is 
bound  by  the  contract  to  convey  immediately,  but  asks  for  an 
injunction  against  any  transfer  of  the  defendant's  property,  by 
which  he  was  to  be  paid,  or  for  a  receiver  of  such  property ;  he 
must  show  that  he  has  a  present  ability  to  fulfil  the  contract ;  not 
merely  that  he  may  possibly  be  able  to  perform  at  the  hearing.^(a) 

i  Pierce  v.  Nichols,  1  Paige,  244.  *  Akerly  v.  Vilas,  15  Wis.  401. 

2  Moss  V.  Matthews,  3  Ves.  279.  ^  Baldwin  v.  Salter,  8  Paige,  473. 

3  Seton  V.  Slade,  7  Ves.  265;  Cotton 
V.  Ward,  3  Monr.  304,  313. 

(a)  Upon  a  bill  filed  by  a  vendor  for  vendor  a  draft  conveyance  for  his  ap- 

specific  performance,  it  appeared  that  he  proval,  which  was  returned,  approved,  in 

could  make  a  good  title  before  the  com-  July,   1816.     Afterwards,  the  purchaser, 

mencement  of  suit,  but  did  not  show  a  on  the  suggestion  of  counsel,  made  sev- 

good  title   to   the  purcliaser  until   after-  eral  objections  to  the  title,  and  delayed 

wards.    Specific  performance  deci-eed,  but  completing  the  purchase.     In  November, 

the  purchaser  to  recover  costs.     Towns-  1817,  the  vendor  filed  his  bill  for  specific 

hend  v.  Champernowne,  3  Y.  &  Coll.  505.  performance,  and  the  Master  found,  that 

Agreement  between  vendor  and  pur-  the  vendor  could  make  a  good  title  before 

chaser,  that  the  purchaser  should  be  en-  the  bill  was  filed,  but  did  not  show  a  good 

titled  to  the  rents  on  the  1st  May,  1813,  title  to  the  purchaser  till  the  20th  Janu- 

or  from  such  time  as  the  pui'chase  should  ary,  1825.     Held,  upon  a  decree  for  spe- 

be  completed.     An  abstract  of  title  was  cific  performance,  that  the  proper  date  of 

afterwards    furnished  to   the    purchaser,  the  conveyance  was  the  20th    January, 

and  tlie  title  appeared  to  be  satisfactory  1825.     Ibid, 
to  him  ;  and  in  May,  1816,  he   sent  the         After  bill,  answer,  and  replication,  no 


CHAP.    XI.]  TIME   OF   PERFORMING    CONTRACTS.  197 

6.  Though  equity  will  decree  specific  performance  of  a  contract 
for  the  sale  of  land,  if  the  vendor  is  able  to  make  a  good  title  at 
any  time  before  decree  ;  the  dismission  of  the  bill  is  a  bar  to  a  new 
bill  for  the  same  object.^ 

7.  The  inability  of  the  vendor  to  make  a  good  title,  at  the  time 
of  decree,  though  a  sufficient  ground  for  refusing  a  specific  per- 
formance, will  not  authorize  a  Court  of  Equity  to  rescind  the 
agreement,  where  the  parties  have  an  adequate  remedy  at  law  for 
its  breach.^ 

8.  Where  the  report  is  in  favor  of  the  title,  the  Court,  on  allow- 
ing exceptions  to  it,  will  give  the  vendor  a  reasonable  time  to 
remove  the  objection,  although  the  exceptions  and  further  direc- 
tions were  set  down  to  come  on  together.^ 

9.  All  objections  to  a  title  were  to  be  taken  within  twenty-one 
days  from  delivery  of  the  abstract,  or  to  be  deemed  waived,  and 
time  was,  in  that  respect,  to  be  considered  the  essence  of  the  con- 
tract. Held,  that  the  twenty-one  days  did  not  begin  to  run,  until 
a  perfect  abstract  had  been  delivered.^ 

10.  Although  time  was  originally  an  essential  part  of  the  con- 
tract, it  may  become  unessential  by  the  subsequent  conduct  of  the 
parties. (a)     The  delay  of  one  party  in  fulfilling  a  contract  affords 

1  Hepburn  v.  Dunlap,  1  Wheat.  179.  »  Portman  v.  Mill,  1  Russ.  &  Myl.  696. 

2  Ibid.  4  Hobsony.  Bell,  2  Beav.  17. 

further  steps  were  taken  in  the  cause,  for  true  that  time  is  not  essential,  but  imma- 
upwards  of  twenty  years.  Held,  not  of  terial,  when  comparing  its  eflect  in  that 
itself  a  reason  for  refusing  specific  per-  court  with  that  at  law. 
formance,  there  being  acquiescence  on  Default  in  respect  to  time  is  not  a  bar 
both  sides.  But  held  to  be  a  good  reason  of  itself,  except  in  peculiar  cases  ;  but  is 
for  not  giving  costs.  Cane  v.  Allen,  2  only  evidence  with  other  things  of  aban- 
Dow,  289.  donment,  and,  of  course,  may  be  rebutted, 
(a)  More  especially  where  both  parties  Time  may  in  all  cases  be  made  essential, 
have  acquiesced  in  extending  it.  Schroep-  but  where  it  is,  it  does  not  follow  tliat  it 
pel  V.  Hopper,  40  Barb.  425.  See  Williston  is  necessarily  conclusive  in  equity,  as  it  is 
V.  Williston,  41  ib.  635 ;  Shafer  v.  Niver  at  law.  In  equity,  time  may  be  waived 
9  Mich.  253 ;  Heckard  v.  Sayre,  34  111.  by  a  party,  as  may  any  other  stipulation 
142 ;  Stow  V.  Russell,  36  III.  19  ;  Wolf  v.  introduced  for  his  benefit.  A  failure  to 
Willitts,  85  111.  89.  It  is  said,  time  may  avail  himself  of  it,  on  the  first  fit  occasion, 
be  of  the  essence  of  the  contract  in  equity,  and  before  or  when  the  other  party  begins. 
Exact  punctuality  may  be  of  great  impor-  after  a  default,  to  act  again  on  the  agree- 
tance  to  the  interests  of  a  contracting  ment,  may  amount  to  such  waiver.  Falls 
party  in  many  situations.  In  some,  it  is  v.  Carpenter,  1  Dev.  &  Batt.  Eq.  277. 
obvious  from  the  state  of  the  property  and  Bill  for  specific  performance  of  a  con- 
other  circumstances.  In  otliers,  we  do  tract  between  the  plaintitts  and  defendants, 
not  doubt  that  the  instiniment  may  be  so  a  corporation,  for  the  sale  of  lands  by 
framed  as  to  show  that  it  is  a  substantial  the  former  to  the  latter,  at  a  price  to  be 
part  of  the  contract.  In  those  cases,  the  fixed  by  tliird  persons.  The  title  to  be 
Court  can  no  more  dispense  with  it  than  perfect,  and  the  defendants  to  pay  within 
any  other  vital  provision.  But  the  parties  ten  days  after  notice  of  tiie  award.  Within 
themselves  may  ;  and  it  is  in  that  sense  the  ten  days  the  vendors  tendered  a  deed. 


198 


LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 


no  ground  for  equity  to  relieve  the  other  from  the  consequences  of 
the  delay,  Avhere  the  latter  has  assented  to  and  acquiesced  in  such 


and  no  objection  was  made  to  tlie  title. 
Soon  afterwards,  another  tender  was  made 
to  tiie  president  of  the  company.  He 
made  no  objection  to  tlie  time  or  to  any 
incumbrance  on  tlie  property,  but  subse- 
quently returned  the  deed,  the  company 
retaining  the  property  and  doing  nothing 
to  abandon  the  sale.  At  the  time  of 
tender,  there  was  a  small  mortgage  upon 
the  property  of  which  the  land  sold  was  a 
part ;  but  it  was  paid  within  eighteen  days 
after  the  award  and  before  commencement 
of  suit.  Held,  the  defendants  waived  the 
right  to  have  a  perfect  title  within  the  ten 
days  ;  that  the  parties  had  not  made  time 
of  the  essence  of  the  contract,  nor  was  the 
making  of  a  perfect  title  within  ten  days 
a  condition  precedent  to  pajment  of  the 
price  ;  and  that  the  plaintitts  were  entitled 
to  a  decree,  if  tliey  could  make  a  good 
title  at  the  time  of  such  decree.  Viele  i'. 
The  Troy,  &c.  21  Barb.  381.  The  Court 
say  (p.  3yO)  :  "  It  was  as  much  the  duty 
of  the  defendants  to  pay  at  the  time  stip- 
ulated, as  of  the  plaintiffs  to  convey. 
Neither  party  could  sue  at  law,  without 
the  tender  of  a  deed  by  the  one  party,  or 
of  the  purchase-money  by  the  otiier.  The 
provision  for  a  conveyance  of  the  prem- 
ises free  from  incumbrances  was  not  an 
express  condition  precedent,  to  be  per- 
formed within  the  period  often  days  after 
notice  of  the  award,  else  the  contract 
should  be  at  an  end,  and  the  defendants 
relieved  from  payment.  It  was  not  the 
understanding  of  the  parties  that  after  the 
amount  of  the  purchase-money  had  been 
ascertained,  and  notice  thereof  given, 
within  ten  days  thereafter  the  plaintiffs 
should  convey  a  perfect  title,  on  making 
default,  the  agreement  to  be  void.  The 
defendants  had  taken  possession  of  the 
premises  prior  to  the  award,  and  at  the  ex- 
piration of  the  ten  days  were  using  and 
still  continue  to  use  them.  There  is  noth- 
ing, therefore,  in  the  contract,  or  the  cir- 
cumstances surrounding  the  case,  showing 
that  the  parties  had  made  time  any  part 
of  the  essence  of  the  contract.  The  de- 
fendants could  lose  notliing  by  extending 
the  time  for  the  plaintiffs  to  convey  a  per- 
fect title  bej'ond  the  period  often  days,  as 
they  were  in  possession  and  use  of  the 
premises,  and  could  not  be  called  on  to 
pay  the  award  unless  such  perfect  title 
were  made.  Within  the  ten  days  the  de- 
fendants might  have  tendered  the  pur- 
chase-money and  demanded  a  deed,  and, 
in  default  of  the  plaintiffs,  have  sued  at 
law.  So,  also,  the  plaintiffs  having  ten- 
dered a  deed  conveying  a  perfect  title,  in 


default  of  payment  might  have  maintained 
their  action  at  law.  As  neither  party  has 
put  the  other  in  default,  and  the  time  is 
elapsed,  it  is  probable  that  the  remedy  of 
both,  at  law,  for  a  breach  of  the  contract, 
is  gone.  Either  party  may,  however,  go 
into  equity  for  a  specific  performance, 
and  make  the  offer  incumbent  on  him  in 
the  complaint ;  and  the  fiailure  to  make 
the  tender  before  the  commencement  of  the 
suit  would  only  affect  the  question  of  costs 
( 12  Ves.  25).  In  general,  and  where  lapse 
of  time  is  not  essential  to  the  substance  of 
the  contract,  it  is  not  necessary  for  the 
plaintiff  to  show  that  he  was  able  to  give 
a  good  title  at  the  time  of  making  the 
agreement  to  sell,  or  even  at  the  com- 
mencement of  the  suit.  It  will  be  suffi- 
cient if  he  can  give  a  perfect  title  at  the 
time  of  the  decree,  or  at  the  time  when 
the  Master  makes  his  report  (5  Paige, 
241).  In  Seymour  v.  Delancey,  3  Cow. 
445,  Suydam,  Senator,  said  :  '  In  the  case 
of  a  specific  performance  it  is  the  usual 
course  of  the  Court  to  refer  the  inquiry  as 
to  title  to  a  Master.  The  JNIaster  is  to 
inquire  whether  the  party  can  make  a 
deed  according  to  his  contract.  If  he  can, 
it  is  sufficient,  although  he  was  not  in  a 
situation  to  do  so  when  he  entered  into 
the  contract,  or  at  the  time  for  perform- 
ance ;  though  it  might  be  otherwise  where 
one  party  had  been  quickened  by  the 
other,  or  where  time  is  of  the  essence  of 
the  contract.'  "  Where  a  vendor  agrees 
to  convey  on  a  certain  day,  and  the  vendee 
in  possession  to  give  his  notes  for  the 
price  on  a  certain  subsequent  day,  and 
the  vendor  does  not  give  the  deed  as 
agreed,  but  waits  till  tlie  term  that  the 
notes  had  to  run  expires,  and  then  tenders 
it ;  such  purchaser  will  be  presumed  to 
have  acquiesced  in  the  delay ;  or,  at  any 
rate,  if  when  the  deed  is  tendered  he  makes 
no  objection  to  the  delay,  stating  only  that 
he  is  not  prepared  to  pay  the  money  for 
which  he  had  agreed  to  give  the  notes, 
and  handing  back  the  deed  offered,  he 
will  be  considered,  on  ejectment  brought 
by  the  vendor  to  recover  his  land,  to  have 
waived  objections  to  the  vendor's  non- 
compliance witli  exact  time.  Gregg  v. 
Von  Phul,  1  Wallace,  274. 

In  case  of  a  sale  on  seven  years'  cred- 
it, with  interest  annually,  if  the  vendor 
waives  the  payment  of  interest  as  it  ac- 
crues, until  the  expiration  of  the  term  of 
credit,  and  the  land  has  largely  appreci- 
ated in  value,  by  means  of  improvements 
made  by  the  vendee,  with  the  vendor's 
knowledge ;  the  vendor,  on  the  expiration 


CHAP.    XI.]  TIME   OP   PERFORMING    CONTRACTS.  199 

delay.i  Thus  time  is  waived  by  the  vendor's  bill  for  specific  ])er- 
formaiice.^  So  the  neglect  of  the  obligee,  in  a  bond  for  conveyance, 
to  pay  an  instalment  at  the  time  agreed,  does  not  cause  a  forfeit- 
ure, if  the  obligor  has  not  regarded  time  as  of  the  essence  of  the 
contract ;  and  a  subsequent  receipt  of  payment  is  a  waiver  of  and 
forfeiture  for  this  cause.^  So  a  defendant  may  plead,  that,  by  a 
subsequent  agreement,  not  under  seal,  made  before  breach,  the 
time  for  deducing  title  had  been  enlarged,  and  that  he  was  ready 
to  deduce  it  within  the  enlarged  time  ;  or  that,  in  consideration 
the  defendant  would  deduce  a  good  title  and  convey  (after  breach), 
the  plaintiff  agreed  to  accept  such  title  and  conveyance  at  a  later 
day.'*  So  it  has  been  sometimes  held,  that  the  time  of  performance 
of  the  condition  of  a  bond  may  be  enlarged  by  a  parol  agreement. 
Thus,  where  certain  acts  were  done  by  the  obligor,  amounting  to  a 
substantial,  though  not  literal,  performance ;  held,  that  evidence 
was  admissible  of  a  parol  agreement  of  the  obligee,  to  waive  any 
further  performance.^  So  specific  performance  of  an  agreement  to 
purchase  may  be  decreed,  after  considerable  delay ;  if  the  vendee 
has  not  demanded  his  deposit,  or  shown  a  determination  not  to 
proceed.^(a)    And  if  the  purchaser  demands  his  deposit  at  the  day, 

1  Sloo  V.  Law,  1  Blatch.  512.  5  Fleming   v.    Gilbert,  3  Johns.  358 ; 

2  Dennis  v.  M'Cagg,  32  111.  429.  Keating    v.   Price,     1    Johns.    Cas.    22  ; 

3  Linscott  V.   Buck,   33   Maine,  530;    Erwin   v.    Saunders,   1    Cow.  250.      See 
Hudson  V.  Bartrani,  3  Madd.  440.  p.  172. 

*  Kippingall  v.  Lloyd,  2  Nev.  &  M.  410.  "  Pincker  v.  Curteis,  4  Bro.  329. 

of  the  term  of  credit  and  non-payment  of  necessary.     Friess  v.  Rider,  24  N.Y.  (10 

the   purchase-money,   is   not   entitled    to  Smith),  367. 

rescind  the  contract  as  against  judgment  [a]  The  plaintiff,  on  the  26th  of  April, 
creditors  of  the  vendee.  Brock  v.  Hidy,  agreed  to  purchase  a  manor  from  the  de- 
13  Ohio  (N.S.),  306.  fendant,  to  complete  the  purchase  accord- 
A  vendee  was  ready  on  the  stipulated  ing  to  certain  conditions,  and,  upon  the 
day,  but,  at  the  request  of  the  vendor,  purchase  taking  place,  to  sign  an  agree- 
postponed  performance  until  the  next  day,  ment  for  payment  of  the  purchase-money 
when  he  was  again  ready,  and  waited  two  on  or  before  the  24tli  of  July.  It  was  also 
hours  for  the  vendor,  who  did  not  appear,  agreed,  that,  on  completion  of  the  pur- 
Later  in  the  day,  the  vendor  called  upon  chase,  the  purchaser  should  be  entitled  to 
the  vendee  and  oflered  to  perform  ;  the  the  rents  and  i)rotits  of  such  ])arts  of  the 
vendee  refused,  assigning  as  a  reason  estate  as  were  let,  from  the  24th  of  June, 
the  commission  of  waste,  which,  however,  The  day  of  completing  the  purchase  was, 
the  evidence  did  not  show.  The  vendor  for  the  convenience  of  the  purchaser, 
sued  him  for  stipulated  damages.  Held,  altered  from  the  24tii  of  June  to  the  24tli 
the  vendee  was  guilty  of  no  default,  and,  of  July.  A  tenant  of  a  copyiioUl  parcel 
after  the  vendor's  second  default,  was  not  of  the  manor  having  died  seised  tlicreof 
obliged  to  assign  any  reason  tor  his  re-  in  1836,  the  admittance  of  the  i)arties  en- 
fusal,  and  the  fact  that  he  assigned  an  titled  to  be  admitted  was  i)()stp<)ncd  from 
erroneous  one  could  not  prejudice  him ;  time  to  time,  at  their  request,  and  did  not 
neither,  at  the  second  stipulated  time,  in  take  place  till  the  1st  of  July,  and  in 
tlie  absence  of  the  vendor,  was  any  formal  December  the  fine  was  paid  to  the  defend- 
offer  or  display  of  the  purchase-money  ant.     The  conveyance  of  the  manor  was 


200  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 

and  the  vendor  has  not  delivered  his  abstract,  and  also  neglects  to 
deliver  it,  until  after  an  action  brought  for  the  deposit ;  this  is 
evidence  of  an  abandonment  of  the  contract  by  the  vendor ;  who 
shall  not  be  entitled  afterwards  to  a  specific  performance. ^ 

10  a.  Where  a  person  had  contracted  for  the  purchase  of  an 
estate  from  trustees,  under  a  deed  of  release  and  assignment  for 
the  benefit  of  the  creditors  of  a  trader,  upon  a  stipulation  that  a 
good  title  should  be  made  by  a  given  day,  and  that  day  fell  within 
the  period  during  which  a  fiat  in  bankruptcy  might  have  issued 
against  the  trader ;  held,  he  was  in  the  situation  of  a  purchaser 
who  had  waived  a  stipulation,  that  time  should  be  of  the  essence 
of  the  contract.^  So  an  agreement  was  made  for  sale  of  real  prop- 
erty ;  if  the  residue  of  the  purchase-money  were  not  paid  by  a  cer- 
tain day,  the  agreement  to  be  void,  and  the  vendors  might  resell. 
The  money  was  not  paid  on  the  day,  but  the  purchaser  retained 
possession,  giving  a  warrant  of  attorney  to  confess  judgment  in 
ejectment.  Held,  the  stipulation  as  to  time  was  waived.^  So  a 
vendor  and  vendee  proceeded  in  the  treaty  beyond  the  time  for 
completing  the  contract.  The  vendor  having  brought  an  action, 
and  withdrawn  his  record,  not  having  got  in  a  judgment  amounting 
to  half  the  purchase-money  ;  the  Court  refused  an  injunction.*  So 
A.  articles  to  buy  land,  and  pays  part  of  the  purchase-money ; 
afterwards,  he  enters  into  several  orders  of  Court,  to  pay  the  resi- 
due by  such  a  day,  and,  in  default  thereof,  to  give  up  the  articles, 
and  lose  what  he  had  before  paid.  The  Court  will  relieve,  though 
these  orders  have  not  been  complied  with.^  So,  in  assumpsit,  the 
declaration  alleged,  that  the  plaintiff  was  possessed  of  a  house,  &c., 
for  the  residue  of  a  term  of  six  years,  and  agreed  to  assign  the 
lease  to  the  defendant  at  a  certain  price,  and  give  possession  on  a 

1  Lloyd  V.  CoUett,  4  Bro.  469.  ^  Ex  parte  Gardner,  4  You.  &  Coll.  503. 

2  Hipwell  ;;.  Knight,  1  You.  &  Coll.         *  Wood  v.  Bernal,  19  Ves.  220. 

419.  5  Vernon  v.  Stephens,  2  P.  Wms.  66. 

executed  in  August,  and  the  purchase-  any  written  memorial  of  the  sale,  or  corn- 
money  paid  in  the  following  September,  plaining  that  he  had  none  until  sued  on 
Held,  an  action  for  money  had  and  re-  his  bond  for  the  unpaid  consideration,  and 
ceive'd  could  not  be  maintained  to  recover  a  tender  of  a  conveyance  having  been 
the  fine.  Lord  Hardwicke  v.  Lord  Sandys,  made  to  him  pending  the  suit ;  lield,  he 
12  Mees.  &  Wels.  761.  could  not  be  relieved  by  the  Statute  of 
The  vendee  at  an  executor's  sale,  hav-  Frauds,  especially  as  his  answer  did  not 
ing  paid  several  thousand  dollars  during  propose  a  rescission  of  the  contract,  — 
four  years,  and  being  unable  to  pay  punc-  even  if  there  had  been  no  written  memo- 
tually,  obtained  indulgence,  and  then  re-  rial  of  the  contract.  Hill  v.  Spalding,  1 
newed  his  obligation,  and  having  occupied  Duv.  216. 
the  land  seven  years,  without  asking  for 


CHAP.    XI.]  TIME    OF   PERFORMING   CONTRACTS.  201 

certain  clay ;  and  averred,  that  slic  was,  from  the  time  of  making 
the  agreement,  ready  and  willing  to  assign  her  interest  in  the 
house,  etc.     The  defendant,  in  his  pleas,  traversed  this  readiness 
and  willingness.     The  greater  part  of  the  house  was  destroyed  by 
fire  shortly  after  the  agreement,  and  before  the  time  for  its  com- 
pletion.   The  agreement  pi-ovided,  that  either  party  making  default 
should  pay  the  other  X500  as  liquidated  damages.    After  the  mak- 
ing of  the  agreement,  but  before  the  day  for  its  completion,  the 
parties  agreed,  by  an  indorsement,  to  enlarge  the  time  for  a  few 
days.     Held,  this  amounted  to  a  fresh  agreement.^     So  under  a 
contract  for  the  sale  of  houses,  which,  from  defects  in  the  title, 
could  not  be  completed  on  the  day,  the  treaty  proceeded,  upon  a 
proposal  to  waive  the  objections  on  certain  terms.     The  houses 
being  burnt  before  a  conveyance,  held,  the  purchaser  was  bound,  if 
he  accepted  the  title ;  although  the  vendor  suffered  the  insurance 
to  expire,  at  the  day  on  which  the  contract  was  originally  to  have 
been  completed,  without  notice.     A  reference  to  the  Master  was 
therefore  directed,  to  inquire,  whether  the  proposal  was  accepted 
or  acquiesced  in  on  behalf  of  the  purchaser .^     So  where  a  vendee 
of  land,  incumbered  by  mortgage  and  judgment,  promised  in  writ- 
ing to  pay  one  of  the  vendor's  creditors,  by  a  certain  day  ;  held,  a 
subsequent  parol  agreement,  pointing  out  the  mode  in  which  the 
title  should  be  secured  to  the  vendee,  and.  in  etfect  carrying  the 
contract  into  execution,  but  postponing  the  day  of  the  creditor's 
payment,  was  no  variance  of  the  original  agreement.^     So  condi- 
tions of  sale  stipulated,  that  the  sale  should  be  completed  on  a 
certain  day ;  that  objections  to  the  title,  not  made  within  twenty- 
one  days  from  delivery  of  the  abstract,  should  be  considered  as 
waived  ;  and  that,  if  the  purchaser  should  not  comply  with  tlie  con- 
ditions, his  deposit  should  be  forfeited,  and  the  vendor  be  at  liberty 
to  resell.    Tlie  purchaser  did  not  deliver  his  objections  until  several 
weeks  after  the  twenty-one  days,  and  after  the  day  appointed  for  com- 
pleting the  purchase.     The  vendor's  solicitor,  however,  received 
them,  and  entered  into  a  long  correspondence  with  the  purchaser  on 
the  subject  of  them,  but  without  coming  to  a  satisfactory  conclusion. 
Finally,  the  vendor,  against  the  purchaser's  objection,  resold  the 
property  (but  at  a  less  price)  to  one  who,  some  months  before  the 

1  Bacon  v.  Simpson,  3  Mees.  &  Wels.  ^  Reed  v.  Chambers,  G  Gill  &  Johns. 
78.                                                                     490. 

2  Paine  v.  Meller,  6  Ves.  349. 


202  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.   XI. 

suit,  had  notice  of  the  first  sale.  Ahout  six  months  afterwards,  he 
filed  his  bill  against  the  two  purchasers  and  the  auctioneer.  The 
Court  held,  that  the  conditions  had  been  waived  by  the  solicitor, 
and  decreed  specific  performance,  with  a  reference  to  the  Master 
as  to  title ;  but  dismissed  the  bill,  with  costs,  as  against  the  auc- 
tioneer, who  denied  that  he  had  ever  intended  to  part  with  the 
deposit ;  and  without  costs,  as  against  the  second  purchaser,  who 
claimed  the  benefit  of  his  contract,  if  the  Court  should  refuse  to 
enforce  the  plaintiff's. ^ 

11.  But,  on  the  other  hand,  it  is  said,  although  courts  of  equity 
have  sometimes  interfered  in  favor  of  parties  who  were  not  ready 
to  perform  their  agreement  at  the  day,  where  the  time  appeared 
not  essential,  yet,  when  a  further  indulgence  is  granted,  it  should 
only  be  in  extreme  cases,  where  a  party  has  failed  through  some 
unforeseen  accident ;  or  where  there  is  something  indicating  a 
waiver  of  the  objection  by  the  other  party.  It  is  for  the  parties 
themselves  to  settle  the  terms  of  their  agreement ;  and  courts  have 
no  power  to  determine  which  of  those  terms  are,  and  which  are 
not,  material.  A  new  agreement,  extending  the  time  for  the  per- 
formance of  a  contract,  is  evidence  that  the  parties  to  such  con- 
tract deemed  the  time  material.^  So  it  has  been  held,  that  parol 
evidence  is  not  admissible,  to  enlarge  the  time  within  which  the 
terms  of  a  written  agreement  for  the  sale  of  land  were  to  be  com- 
plied with  ;^  and  that  the  day  provided  for  completion  of  the  pur- 
chase, in  a  written  contract,  cannot  be  waived  by  oral  agreement, 
and  another  day  substituted  in  its  place.^ 

12.  On  a  bill  for  specific  performance,  the  questions,  whether 
time  was  originally  of  the  essence  of  the  contract,  and  whether, 
being  so,  the  defendant  has,  by  any  act,  waived  it  as  a  ground  of 
objection  to  the  performance,  are  questions  depending  on  evidence, 
and  not  to  be  decided  except  upon  the  hearing.^ 

13.  Wbere  an  agreement  in  writing  is  to  be  performed  on  a  cer- 
tain day,  and  the  parties  agree  to  enlarge  the  time,  a  declaration 
on  the  day  stated  in  the  agreement,  though  the  evidence  is  of  a 
different  day,  will  support  the  action.^ 

14.  In  many  cases,  notice  from  one  party  to  the  other,  or  the 
want  of  it,  determines  the  effect  of  lapse  of  time  upon  the  contract. 

1  Cutts  V.  Thodey,  13  Sim.  206.  4  Stowell  y.  Robinson,  3  Bing.N.C.  928. 

2  Wiswall  V.  McGowa,  2  Barb.  270.  5  Levy  v.  Lindo,  3  Mer.  81. 

3  Doar  V.  Gibbes,  1  Bailey,  Eq.  371.  6  Thresh  v.  Rake,  1  Esp.  N.P.C.  53. 


CHAP.    XI.] 


TIME    OF   PERFORMING    CONTRACTS. 


203 


Thus,  where  a  vendor,  havhig  notice  from  the  purchaser  that  he 
abandoned  his  contract,  did  not  file  his  bill  for  specific  performance 
till  about  a  year  afterwards ;  the  bill  was  dismissed.^  So  where 
time  is  not  of  the  essence  of  the  contract,  and  there  is  unnecessary 
delay  by  one  of  the  parties  in  completing,  the  other  has  a  right,  by 
notice,  to  limit  the  time,  and,  upon  default,  to  abandon  tlic  con- 
tract.2(a)  But  the  time  may  be  waived,  by  proceeding  in  the  pur- 
chase after  the  expiration  of  the  time  fixed  by  the  notice.^ 


1  Watson  V.  Reid,  1  Rus.  &  Mvl.  236. 

2  Taylor  v.  Brown,  '2  Beav.  180. 

(a)  It  has  been  held,  that  a  party  who 
covenants  to  convey  is  not  in  default,  \\n- 
til  the  other  party  has  demanded  a  con- 
veyance, and,  after  waiting  a  reasonable 
time  to  have  it  drawn  and  executed,  un- 
less such  demand  was  absolutely  refused, 
has  again  demanded  it.  Lutweller  v. 
Lumell,  12  Barb.  512.  That  tliis  is  a 
rule,  not  of  pleadin;/,  but  of  evidence.  Pear- 
soil  V.  Frazer,  14  Barb.  514.  (But  see 
Demand  ;    Tender. 

A  bill  by  a  lessee,  for  specific  perform- 
ance of  an  agreement  for  a  lease,  was  dis- 
missed, because  it  was  not  filed,  until 
more  than  two  years  after  the  defendant 
had  given  notice  to  the  plaintiff  of  his  in- 
tention not  to  perform  the  contract,  on 
account  of  the  latter  not  having  fulfilled 
it  on  his  part.  Heaphy  v.  Hill,  2  Sim.  & 
Stu.  29. 

Bill  for  specific  performance.  The 
plaintiff  agreed  to  take  a  house  of  the  de- 
fendant for  two  years.  Afterwards,  on 
the  4th  of  September,  1817,  he  agreed  to 
buy  it  for  .£25  paid  down,  and  £425  to  be 
paid  on  the  25th  of  December,  at  or  be- 
fore which  time  the  conveyance  was  to 
be  executed.  An  abstract  was  delivered 
on  the  20t]i  of  October,  and  afterwards  a 
draft  of  the  conveyance,  with  the  abstract, 
sent  to  tlie  plaintiff,  with  a  note  of  the 
defendant's  solicitor,  stating  that  tiie 
deeds  were  with  him,  and  desiring  to  hear 
from  the  plaintiff  if  any  objections  oc- 
curred ;  and  many  ineffectual  applications 
were  made  to  see  the  plaintiff.  A  notice 
was  served  on  the  plaintiff  on  the  22d  of 
December,  that  the  defendant  would,  on 
the  23d,  24tli,  and  26th  attend  at  the 
plaintiff's  house,  to  execute  the  convey- 
ance, and,  on  default,  he  should  consider 
the  i)laintiff  as  refusing  to  proceed  in  the 
purchase,  and  act  accordingly.  On  tiie 
2d  of  April  1818,  the  plaintiff  returned  the 
abstract,  with  objections  to  the  title.  On 
the  loth,  the  defendant  distrained  on  the 
plaintiff  for  rent.  The  plaintiff  then  filed 
this  bill.    Held,  the  defendant  should  have 


3  King  i;."Wilson,  6  Beav.  124. 


given  notice  that  he  considered  the  agree- 
ment as  at  an  end,  and  returned  the  £25; 
and,  he  not  having  done  so,  the  Court 
directed  the  usual  reference  as  to  the  title. 
Reynolds  v.  Nelson,  (J  INhuld.  18. 

Where  a  vendor  covenants  to  deduce  a 
good  title  at  A.,  B.,  or  C,  on  or  before 
a  certain  day,  a  plea  that  lie  was  read}'  to 
deduce  a  good  title  at  that  time,  without 
averring  notice  to  the  covenantee,  at 
which  place  he  would  be  ready,  is  insuf- 
ficient. So  a  plea,  that,  by  a  subsequent 
agreement  not  under  seal,  made  before 
breach,  the  time  had  been  enlarged,  and 
that  the  defendant  was  ready  witiiin  the 
enlarged  time.  So  a  plea,  that,  in  consid- 
eration the  defendant  would  deduce  a  good 
title  and  convey  (after  breach),  tlie  plain- 
tiff agreed  to  accept  such  title  and  convey- 
ance at  a  later  day.  Rippingall  i\  Lloyd, 
2  Nev.  &  Mann.  410. 

The  defendant  agreed  to  sell  his  inter- 
est in  a  public  house  to  the  plaintiff',  &c., 
at  an  appraisement ;  payment  on  taking 
possession,  which  was  to  be  on  or  before 
a  certain  day.  The  plaintiff'  paid  a  de- 
posit, to  be  forfeited  if  ho  should  not 
complete  his  jiart  of  the  agreement.  The 
parties  appointed  A.  and  B.  to  be  apprais- 
ers, respectively,  as  agreed.  On  the  day 
appointed  for  executing  the  contract,  A. 
and  B.  met,  but  A.,  the  seller's  ajijjraiser, 
was  informed  that  B.  could  not  conven- 
iently on  that  day  comjilete  the  valuation, 
but  would  do  it  tiie  next  day  ;  and  no 
objection  was  then  made  to  the  delay. 
B.  went  to  the  seller's  premises  the  fol- 
lowing day,  to  make  tiie  valuation,  but  the 
seller  refused  to  allow  him  so  to  do,  and 
said  he  would  not  complete  the  contract. 
In  an  action  for  the  deposit,  held,  it  was 
no  defence  that  the  contract  wiis  not  com- 
pleted on  the  day  mentioned,  the  defend- 
ant not  having  given  notice  that  he  should 
insist  upon  tiiis  term  of  tiie  contract. 
Carpenter  v.  Blandford,  8  Barn.  &  Cress. 
575. 

Agreement  to  sell  a  piece  of  land  for  a 


204  LAW  OF  VENDORS  AND  PURCHASERS.      [CHAP.  XI. 

15.  The  question  of  time  has  also  frequently  been  raised,  in  con- 
nection with  the  delivery  of  an  abstract  of  title.  Thus  it  has  been 
held,  that  merely  undertaking  to  deliver  an  abstract  and  posses- 
sion at  a  particular  time  does  not  make  it  of  the  essence  of  a  con- 
tract. ^ 

16.  Where  objections  to  title  are  to  be  considered  as  waived, 
unless  made  within  a  certain  time  after  delivery  of  the  abstract,  it 
has  been  doubted  whetlier  that  condition  can  be  insisted  on,  if  the 
abstract  is  very  defective. ^ 

17.  The  defendant,  a  purchaser  of  a  public  house,  insisted  that 
time  was  of  the  essence  of  the  contract,  and  that  the  abstract  had 
not  been  delivered  within  the  time  agreed  on.  A  reference,  with- 
out prejudice,  was  made,  on  motion,  as  to  the  title,  and  at  what 
time  it  was  first  shown. ^ 

18.  An  agreement  for  the  purchase  of  an  estate  stipulated,  that 
an  abstract  of  title  should  be  delivered  immediately,  and,  if  the 
contract  was  not  completed  by  a  given  day,  the  purchaser  be  re- 
leased. The  abstract  was  not  immediately  delivered,  but  commu- 
nications on  the  subject  of  the  title  were  continued  between  the 
parties,  until  the  time  limited  by  the  contract  had  expired.  Held, 
the  stipulation  as  to  time  was  waived  by  the  purchaser.*  So  a 
purchaser  cannot  abandon  a  contract,  on  the  ground  of  the  vendor's 
not  having  pefected  the  title  within  a  reasonable  time,  where  the 
former,  who  was  in  possession,  had  been  aware,  from  an  early 
period  of  the  treaty,  that  there  was  some  objection  to  the  abstract, 
but  has  nevertheless  continued  to  negotiate  down  to  a  recent  period, 
and  then  on  a  sudden  (a  fortniglit  after  the  last  act  of  negotia- 
tion) notifies  the  vendor  that  he  abandons  the  contract.  In  such 
case,  an  injunction  will  be  granted,  to  stay  an  action  at  law  for  the 
purchase-money,  on  motion,  almost  as  of  course ;  and,  if  the  case 

1  Boehm  v.  Wood,  1  Jac.  &  Walk.  419.  ^  Foxlowe  v.  Amcoats,  3  Beav.  496. 

2  Cutts  V.  Thodey,  13  Sim.  206.  *  Hipwell  v.  Knight,  1  You.  &  Coll.  419. 

certain  price,  payable  in  instalments,  the  ance.     Held,  as  time  did  not  appear  to  be 

deed  to  be  given  on  payment  of  the  first  of  the  essence  of  the  contract,  and  as  both 

instalment.     Five  months  after   the  first  parties  regarded  the  agreement  in  force 

day  of  i)ayment,  tlie  vendee  offered  the  five  months  after  the  time  fixed,  the  lapse 

money  due,  and  asked  to  show  the  deed  of  another  month,  as  there  was  no  change 

to  his  counsel,  which  the  vendor  refused,  in  the  value  of  the  property,  did  not  ex- 

and,  in  a  month  afterwards,  tlie  vendee  tinguish  the  vendee's  right.    If  the  vendor 

tendered  the  money  due,   with  interest,  had  considered  the  agreement  at  an  end, 

and  then  brouglit  an  action  of  ejectment,  he  sliould  have  notified  the  vendee  of  the 

in  the  nature  of  a  bill  for  specific  perform-  fact.     Kemington  v.  Irwiii,  14  Penn.  143. 


CHAP.    XI.]  TIME   OF   PERFORMING   CONTRACTS.  205 

were  made  out,  it  would  be  sufficieut  ou  the  hearing.^  So  the 
abstract,  though  delivered  very  late,  aud  under  a  notice  that  the  • 
vendee  would  insist  on  his  deposit,  with  interest,  if  the  title  should 
not  be  made  out  and  possession  delivered,  by  the  time  of  payment, 
was  received  and  kept  without  objection.  The  vendee,  upon  the 
construction  and  circumstances,  not  being  entitled  to  insist  on  the 
time,  as  of  the  essence  of  the  contract ;  specific  performance  was 
decreed.^  So,  on  July  22d,  an  estate  was  put  up  at  auction.  By 
the  conditions  of  sale,  an  abstract  of  title  was  to  be  furnished 
within  seven  days,  upon  demand  ;  all  objections  considered  as 
waived,  unless  made  within  eight  days  thereafter ;  and  the  pur- 
chase completed  August  8th.  July  24th,  the  solicitor  of  the 
purchaser  called  for  the  abstract.  The  land  being  mortgaged,  and 
the  mortgagee  abroad,  the  abstract  was  delayed  till  August  3d. 
The  purchaser  thereupon  claims  to  rescind  the  sale,  and  brings  an 
action  for  the  deposit ;  and  the  vendor  files  a  bill  for  specific  per- 
formance, to  which  the  defendant  demurs.  Held,  the  time  of 
delivery  of  the  abstract  was  not  of  the  essence  of  the  contract,  and 
the  demurrer  was  overruled.^ 

19.  Questions  have  sometimes  arisen,  as  to  the  effect,  upon  the 
contract,  of  a  deterioration  in  the  value  of  the  property,  arising 
from  lapse  of  time.  Upon  this  subject  it  is  held,  that  deteriora- 
tion of  the  estate,  arising  from  delay  in  completing  the  purchase, 
is  not  a  ground  for  rescinding  the  contract,  but  may  be  the  sub- 
ject of  an  allowance  to  the  purchaser.*  Thus  tlie  amount  of 
deterioration,  pending  a  suit  for  specific  performance,  having  been 
ascertained  by  an  issue,  the  purchaser  was  allowed  it  out  of  his 
purchase-money,  which  he  had  paid  into  court  under  an  order, 
with  interest  from  the  time  when  he  paid  in  his  money .^  So  the 
completion  of  a  contract  being  delayed  for  three  years  by  difficul- 
ties in  the  title,  the  vendor  was  held  accountable  for  a  deterioration 
of  the  land  during  that  period.'^(«) 


1  Warder  v.  Jeffery,  4  Price,  294.  *  Lord  v.    Stephens,  1   You.  &   Coll. 

2  Seton  V.  Slade,  7  Ves.  265.  222. 

3  Koberts   v.   Berry,  17   Eng.  Law  &         5  Ferguson  v.  Tadnian,  1  Sim.  530. 
Eq.  400.  6  Foster  v.  Deacon,  3  Madd.  394. 

(a)  A.  held  land  by  a  title-bond,  and  presently,   and    that,    the    imi)rovements 

had  made  improvements ;  he  sold  both  to  being   afterwards   burnt  before    tlie  day, 

B.,  possession  to  be  delivered  on  a  future  the  loss  fell  upon  B.  Thompson  v.  Norton, 

day  certain.     Held,  that  the  title  passed  14  Ind.  187. 


206  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    XI. 

20.  Questions  often  arise  as  to  the  construction  of  contracts  in 
reference  to  the  time  of  performance. (a) 

21.  Under  an  agreement  for  conveyance  of  land  on  payment 
of  the  purchase-money,  a  certain  amount  of  which  is  to  be  paid 
annually,  "  the  time  commencing  at  the  date  of  the  agreement," 
the  day  of  the  date  is  to  be  excluded,  although  the  purchaser,  in 
the  mean  time,  is  to  have  the  use  of  the  land.^ 

22.  All  objections  to  a  title  were  to  be  taken  within  twenty-one 
days  from  delivery  of  the  abstract,  or  deemed  waived  ;  and  time 
was,  in  that  respect,  to  be  considered  of  the  essence  of  the  con- 
tract. Held,  the  twenty-one  days  did  not  begin  to  run  until  a 
perfect  abstract  had  been  delivered.^ 

22  a.  Where  parties  contract  that  the  purchase  of  lands  shall  be 
completed  within  so  many  months,  calendar  months  are  intended  ;  ^ 
though  the  word  month  may  mean  lunar  or  calendar  month,  accord- 
ing to  the  intention  of  the  parties.  Thus  there  was  a  sale  of  land 
on  the  24tli  of  January ;  an  abstract  of  the  title  to  be  delivered  to 
the  purchaser  within  a  fortnight,  to  be  returned  by  him  in  two 
months,  to  be  redelivered  within  four  months,  and  the  purchase  to 
be  completed  on  the  24th  of  June,  making  a  period  of  precisely  five 
calendar  months  from  the  date  of  the  sale  and  conditions.  Held, 
calendar  months  were  intended  ;  and  the  condition  for  delivery  of 
the  draft  of  the  conveyance  within  three  months  was  not  a  condition 
precedent,  with  respect  to  its  delivery  within  the  precise  time.'^ 

23.  A  vendor,  in  Illinois,  covenanted  with  the  vendee,  in  Boston, 
to  convey  to  him  certain  lands  in  Illinois  before  a  certain  day.  It 
was  also  verbally  agreed,  at  the  time,  that  the  former  should 
record  the  deed  in  Illinois  before  sending  it  to  Boston,  but  that  it 
should  reach  Boston  before  the  day  named.  Held,  the  covenant 
was  performed  by  depositing  the  deed  in  the  registry  before  the 
day,  though  not  sent  to  Boston  till  after.^ 

24.  Action  on  an  agreement  to  let  the  plaintiff  a  messuage  for 
a  year  from  the  25th  of  March  ;  he  to  take  the  fixtures  at  a  valua- 
tion, and  pay  for  them  on  entry.  Held,  the  plaintiff  might  show 
a  tender  on  the  10th  of  April.^ 

1  Farwell  v.  Rogers,  4  Cush.  460.  ■*  Lang  v.  Gale,  1  Mau.  &  Selw.  111. 

2  Hobson  V.  Bell,  2  Beav.  17.  ^  Shaw  v.  Hayward,  7  Cush.  170. 

3  Hipwell  V.  Knight,  1  You.  &  Coll.  419.         «  Edman  v.  AUen,  6  Bing.  N.  19. 

(a)  Where  an  agreement  was  made  to  two  years  afterwards,  and  after  the  ven- 
malie  a  title  within  "a  short  time,"  it  was  dee  had  abandoned  the  land.  Hussey  v. 
held  not  sufficient  to  tender  a  deed  nearly    Eoquemore,  27  Ala.  281. 


CHAP.    XI.]  TIME    OF   PERFORMING    CONTRACTS.  207 

25.  By  the  conditions  of  a  sale,  which  took  place  September 
18,  the  purchaser  was  immediately  to  pay  a  deposit,  in  part  of 
the  purchase-money,  and  to  sign  an  agreement  for  payment  of  the 
remainder  by  the  28th  of  November ;  the  vendor  was  to  deliver  an 
abstract  within  fourteen  days  from  the  sale,  and  to  deduce  a  good 
title;  objections  to  the  title  were  to  be  taken  within  twenty-one 
days  after  delivery  of  the  abstract ;  and  the  purchaser  was  to  pre- 
pare the  deeds  of  conveyance  by  the  10th  of  November.  Held,  no 
precise  time  was  fixed,  within  which  the  vendor  was  to  deduce  a 
good  title,  and  therefore  a  declaration  against  him  for  failing  to  do 
so  ought  to  aver,  that  he  had  been  allowed  a  reasonable  time.^ 

1  Sansom  v.  Rhodes,  6  Bing.  N.  261. 


208  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP,    XII. 


CHAPTER   XII. 


TITLE    OF   THE   VENDOR. 


1.  General  importance  of  the  subject;  mutual  rights  and  obligations  of  the  parties, 
in  general,  the  vendor  is  bound  to  convey  a  as  to  conveyance  of  the  land  and  payment  of 
good  title;  grounds  of  objection  to  the  title;    the  price. 

1.  The  title,  which  a  vendor  of  real  property  by  executory  con- 
tract is  bound  to  convey  to  the  vendee,  is  of  course  one  of  the 
most  important  topics  connected  with  the  general  subject  of  this 
work ;  and,  indeed,  may  be  said  to  connect  itself,  directly  or  indi- 
rectly, with  almost  every  branch  of  that  subject.  A  mere  engage- 
ment to  convey  certain  land  is  worth  little  or  nothing  to  the 
proposed  vendee,  unless  the  vendor  is  the  real  as  well  as  assumed 
owner  of  the  land.  It  is  an  important  question,  therefore,  how 
far  such  ownership  is  an  essential  element  or  condition  of  the  con- 
tract, and  what  binding  assurance  or  guaranty  of  title  the  pur- 
chaser is  entitled  to  receive.  The  same  question  arises,  in  regard 
to  liens  or  incumbrances  upon  the  land,  diminishing  its  value  to 
the  purchaser ;  and  a  want  of  title  to  a  part  only  of  tlie  property. 
So,  also,  the  time  and  mode  of  settling  questions  of  title,  and  the 
right  of  rescinding  or  claiming  compensation  for  defects  of  title,  are 
matters  upon  which  numerous  questions  and  nice  distinctions 
are  to  be  found  in  the  books.  In  the  present  chapter,  a  more 
general  view  of  the  subject  will  be  given,  and,  in  succeeding  chap- 
ters, first,  the  requisites  of  a  good  title,  and  then  the  specific 
grounds  and  modes  of  objection  to  a  defective  title,  more  particu- 
larly considered. 

2.  It  is  held,  as  the  general  doctrine,  that  an  agreement  to  sell 
land  implies  that  the  title  shall  be  good  and  unincumbered. ^  (a) 

1  Prothro  v.  Smith,  6  Kich.  Eq.  324;  Wilde  v.  Foot,  4  Taunt.  334;  Watts  v. 
Waddle,  1  M'L.  200. 

(a)  An  agreement  by  a  party  to  pay  a  An  agreement,  to  sign  off  all  the  right, 

certain  sum,   "  if  he  should,  get   certain  title,  property,  profits,  and  lands  of  a  com- 

land,"  means,   "  if  he  should   acquire  a  pany,  requires,  that  tangible  chattels  and 

valid  title  to  the  land."     Woods  v.  Kirk,  notes  payable  to  bearer  be  transferred  by 

8  Fost.  324.  delivery,  unless  a  writing  is  expressly  re- 


CHAP.    XII.] 


TITLE   OF   THE   VENDOR. 


209 


If  the  contract  be,  "  to  convey  the  land  by  a  deed  of  conveyance," 
or  "  a  sufficient  deed,"  or  "  a  good  and  sufficient  deed,"  or  such  a 
deed,  "  free  of  all  incumbrances,"  for  a  stipulated  price ;  this  is 
not  fulfilled  by  executing  a  deed  merely,  but  the  party  must  be  able 
to  convey  such  a  title,  as  the  other  party  had  a  right  to  expect, — 
in  general,  an  unincumbered  legal  estate  in  fee ;  and  this  is  to  be 
determined  from  the  fair  import  of  the  terms  used,  with  reference 
to  the  subject-matter.!  And  an  agreement  to  convey  land,  gen- 
erally, and  with  nothing  in  the  transaction  itself  to  indicate  the 
kind  of  conveyance,  requires  a  deed  in  fee-simple,  with  covenants 
of  general  warranty .^  More  especially,  when  a  vendor  seeks  spe- 
cific execution  of  the  contract,  he  must,  if  required  by  the  defend- 
ant, exhibit  such  a  title  as  the  contract  requires.^  So  where  X. 
agrees  to  do  work  for  B.,  and  take  certain  land  in  payment,  a  title 
to  which  B.  agrees  to  give  him ;  the  title  not  being  in  B.,  A.  may 
rescind  the  contract,  or,  if  he  does  the  work,  may  claim  payment 
in  cash.^  So,  if  the  vendor  cannot  make  a  good  title,  the  purchaser 
may  recover  back  the  purcliase-money  with  interest.^(a) 


1  Lawrence  v.  Dole,  11  Verm.  549  ; 
Owings  V.  Baldwin,  8  Gill,  337  ;  Hill  v. 
Ressegien,  17  Barb.  162  ;  Fletcher  v. 
Button,  4  Corast.  396.  See  Garley  i-.  Rice, 
16  Johns.  267 ;  Parker  o.  Parmelee,  20 
Johns.  130. 


2  Witter  V.  Biscoe,  8  Eng.  (Ark.)  422. 

3  Tomhn  v.  M'Chord,  5  J.  J.  Marsh. 
138. 

*  Fitch  V.  Casey,  2  Greene,  300. 
5  4  Corast.  396. 


quired  ;  other  choses  in  action  by  writing 
and  delivery  ;  lands  of  the  firm  by  deed. 
Thompson  v.  Richards,  14  Mich.  172. 

An  agreement  by  a  vendee  of  land,  to 
take  care  of  attachments  put  upon  it  by 
the  vendor's  creditors,  will  not  maintain 
a  suit  as  upon  a  promise  to  jiay  otf  and 
remove  such  attachments.  Lyford  v. 
Winnipiseogee  Bank,  17  N.H.  267. 

A  contract  for  the  removal  of  "  cer- 
tain incumbrances "  on  land  intends  all 
incumbrances,  and  includes  an  inchoate 
right  of  dower.  Fitts  v.  Hoitt,  17  N.H. 
630. 

A.  and  B.  in  good  faith  entered  into  a 
written  agreement,  reciting  that  A.  was 
erecting  a  building  on  certain  premises  of 
which  B.  claimed  to  own  and  represent 
one-quarter  part,  and  providing  that  A. 
should  pay  over  to  B.  one-quarter  of  all 
the  rents  and  income  that  miglit  be  re- 
ceived therefrom,  and  that  B.  sliotild 
defray  one-quarter  part  of  the  expenses 
of  erecting  the  building,  and  of  repairs 
and  taxes  thereon ;  and  tliat,  in  case  any 
part  of  the  rents  and  income  so  paid  over 
by  A.  to  B.  should  be  recovered  of  A.  by 


any  lawful  owner  of  the  interest  claimed 
by  B.,  then  B.  would  refund  the  same  to 
A.,  and  bear  a  proportional  share  of  de- 
fending suits  at  law  to  recover  the  same. 
Held,  that  A.  was  liable  to  pay  over  to  B. 
one-quarter  of  the  rents  and  income 
received,  no  claim  having  been  made 
therefor,  although  the  claim  of  B.  was 
unfounded,  and  A.  was  solo  owner,  and 
executed  the  agreement  under  a  misap- 
prehension of  his  right ;  and  also  to  pay 
interest  on  the  same,  although  no  demand 
was  proved.  Spear  v.  Hancock,  6  Allen, 
205. 

Upon  a  sale  of  lands,  a  note  was  given, 
payable  on  such  a  day,  provided,  if  the 
lands  should  be  involved  in  any  suit  con- 
cerning the  title,  no  payment  should  be 
required  till  tiie  suit  was  decided.  At 
the  day,  no  such  suit  being  brought,  held, 
an  action  wo>ild  lie  upon  the  note.  Busby 
V.  Treadwell,  24  Ark.  456. 

(«)  Bill  for  specific  performance  of  a 
contract  to  convey  land.  The  defendant 
agreed  to  "  convey  by  a  good  and  valid 
deed,"  within  one  year,  upon  four  days' 
notice,  on  condition  of  the  plaintifi's  pay- 


14 


210 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XII. 


3.  It  is  further  said  on  this  subject,  that,  where  one  contracts  to 
purchase  on  the  faith  of  the  vendor's  having  a  good  title,  he  has 
a  right  to  have  the  title  sifted  to  the  bottom,  before  he  can  be  called 
upon  either  to  accept  an  indemnity  or  compensation  for  a  defect, 
or  to  abandon  the  contract.^  So  equity  will  not  compel  a  pur- 
chaser to  take  a  doubtful  title;  as  where  it  depends  on  the  doubtful 
interpretation  of  a  will,  all  parties  in  interest  not  being  bound  by 
the  decree.^  Though  under  a  contract,  "  titles  to  be  satisfactory," 
the  purchaser  is  not  sole  judge  of  the  title,  but  it  must  be  a  good 
marketable  one,  of  which  the  Court  must  judge,  if  the  parties  dis- 
agree.^ And  a  title  is  doubtful,  when  it  is  such  as  other  persons 
may  fairly  question,  although  the  Court  entertains  a  favorable 
opinion  of  it.^  If  the  doubts  concerning  a  title  arise  upon  a  ques- 
tion connected  with  the  general  law,  the  Court  is  to  judge  whether 

1  Knatchbull  v.  Griieber,  3  Mer.  137.  3  Regney  v.  Coles,  6  Bosw.  479. 

-  Sohier  v.  Williams,  1  Curt.  479.    See  <  Pyrke    v.    Waddinghani,    17    Eng. 

p.  217.       _  Law  &  Eq.  534. 


ing  in  a  specified  manner  at  the  expiration 
of  the  year  or  the  notice.  A  previous 
deed  of  tiie  land,  unrecorded  and  unknown 
to  the  plaintiff,  assigned  to  the  defend- 
ant's grantor  a  mortgage  made  by  a 
former  owner,  containing  a  reservation  of 
"such  interest  as  the  mortgagor  acquired 
by  virtue  of  a  certain  prior  mortgage  of 
the  same  to  him  to  secure  the  payment 
of  $1,400."  The  plaintiff  afterwards 
made  inquiry  of  the  defendant  respecting 
the  reservation,  and  notified  him  that  he 
should  not  accept  a  quitclaim  deed.  The 
defendant  made  no  explanation,  but  of- 
fered, for  a  further  sum,  to  clear  up  the 
title.  Within  the  year,  the  plaintiff  noti- 
fied the  defendant,  that  he  should  take 
the  property,  as  agreed,  and  demanded  a 
warranty  deed,  tendering  the  price.  The 
defendant  refused  to  give  such  deed,  but 
tendered  a  quitclaim  deed,  and  demanded 
payment,  which  the  plaintiff  refused. 
Held,  the  convej'ance  and  paj'ment  were 
to  be  concurrent,  and  each  party  was 
bound  to  perform,  on  his  part,  at  the 
time  appointed  ;  that  the  plaintiff  was  not 
bound  to  accept  a  quitclaim  deed,  or  make 
further  advances,  till  the  title  was  cleared 
up ;  that  any  deed,  passing  a  clear  title 
in  fee,  would  satisfy  the  contract,  but,  as 
the  property  was  apparently  incumbered, 
the  defendant  was  bound  either  to  remove 
or  explain  the  incumbrance,  or  give  a 
warranty  deed.     22  Conn.  513. 

In  a  late  case  in  New  Jersey,  it  was 
held,  that  a  purchaser  Avill  not  be  com- 
pelled to  take  and  pay  the  agreed  price 


for  an  incumbered  or  doubtful  title,  unless 
he  has  expressly  agreed  to  do  so.  Cham- 
bers V.  Tulane,  1  Stockt.  146.  Thus  a 
devise  was  made  as  follows  :  "  All  and 
every  part  and  parcel  of  my  real  and  per- 
sonal estate  hereinbefore  not  devised  and 
bequeathed,  after  my  son  arrives  at  the  age 
of  twenty -one  years,  in  case  his  mother 
hath  then  departed  this  life,  shall  be  sold 
at  the  discretion  of  my  executors."  Held, 
that  land  devised,  but  which  by  these 
terms  had  returned  and  become  part  of 
the  estate,  was  not  embraced  in  the  power 
of  sale.  Also,  that  the  power  of  sale  was 
personal,  and  did  not  pass  to  an  executor 
of  the  executor.  Upon  these  grounds, 
held,  a  bill  to  enforce  specific  performance 
against  a  purchaser  of  the  land  should  be 
dismissed ;  but  without  costs,  the  vendor 
having  acted  in  good  faith  and  by  advice 
of  counsel.  Tlie  Court  say  (p.  153)  : 
"  In  decreeing  a  specific  performance,  the 
Court  must  exercise  its  discretion,  —  not 
an  arbitrary  discretion,  but  a  discretion 
regulated  and  governed  by  established 
principles.  As  a  general  principle,  it  is 
well  settled  that  the  Court  will  not  com- 
pel a  party  to  pay  his  money  and  take  a 
doubtful  title,  or  an  incumbered  property 
rmless  the  party  has  bargained  for  such. 
There  is  no  pretence  that  such  was  the 
case  here.  The  complainant  acted  in 
good  faith.  He  supposed  he  could  give 
a  good  title  to  the  land,  and  such  was  the 
undei'standing  of  both  i)arties  in  entering 
into  the  agreement." 


CHAP.    XII.]  TITLE    OF    THE    VENDOR.  211 

that  law  is  settled ;  if  not,  or  if  extrinsic  circumstances,  which 
neither  the  purchaser  nor  the  Court  can  satisfactorily  investigate, 
may  affect  tlie  doubt  as  to  the  title ;  specific  performance  will  be 
refused.^  Thus,  upon  a  bill  by  a  vendor  for  specific  ])crformance, 
the  case  tui-ncd  on  the  construction  of  a  will,  and  the  Court 
strongly  inclined  in  favor  of  the  title ;  but,  the  opinion  not  resting 
upon  any  general  rule  of  law,  or  upon  reasoning  which  would 
necessarily  satisfy  others,  or  preclude  substantial  litigation  ;  spe- 
cific performance  was  refused.^  So  in  case  of  a  written  agree- 
ment, executed  at  the  time  of  the  delivery  of  a  deed  of  land,  and 
the  making  of  a  note  for  the  price,  that  if,  in  a  suit  then  pending 
between  other  parties,  involving  part  of  a  certain  line,  another 
part  of  which  affected  the  boundaries  of  the  land  conveyed,  it 
should  be  decided  that  the  grantor  was  not  entitled  to  a  certain 
part  of  the  land,  he  should  repay  part  of  the  price  ;  held,  the  effect 
of  the  agreement  was,  to  make  his  right  and  title  to  convey 
dependent  upon  the  final  decision  of  the  suit;  and  an  adverse 
judgment  therein  might  be  set  up  in  defence  i^ro  tanto  to  an  action 
for  the  price  .3 

4.  More  especially,  if  the  obligor  in  a  bond  for  titles  is  insolv- 
ent, or  without  the  jurisdiction  of  the  courts,  leaving  no  proj)crty 
within  it  liable  for  the  claim  against  him,  and  there  is  an  out- 
standing paramount  title  ;  the  vendee  shall  .have  relief  from  pay- 
ment of  a  proportional  part  of  the  price,  before  eviction ;  the 
particular  circumstances  relied  on  for  such  abatement  being  dis- 
tinctly alleged.^  But  in  an  action  by  the  assignee  of  a  purchaser 
against  the  vendor,  to  enforce  specific  performance,  it  is  no  de- 
fence, that  the  assignor,  with  another  person,  owes  the  defendant 
the  purchase-money  of  other  land,  that  they  are  insolvent,  and  the 
land  an  inadequate  security.'^ 

6.  We  shall  hereafter  have  occasion,  in  connection  with  the 
remedies  of  vendor  and  purchaser,  to  consider  at  length  the  claim 
in  equity  for  specific  performance.  As  a  part  of  the  law  relating  to 
the  present  subject,  —  the  title  of  the  vendor,  —  it  need  only  bo 
here  stated,  that,  as  the  Court  has  a  discretion,  eitlier  to  decree 
specific  performance  of  an  agreement  for  a  purchase,  or  to  leave 
it  to  law ;  a  purchaser  will  not  be  compelled  to  take  a  doubtful 

1  Ibid.  •  4  McGehee  v.  Jones,  10  Geo.  127. 

"^  Ibid.  5  Seaman  v.  Van  Kenssolaer,  10  Barb. 

3  Daggett  V.  Daggett,  8  Cusli.  520.  81. 


212  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.   XII. 

title.^(rt)  More  especially  if  the  contract  is  for  an  indefeasible 
title?  Nor  will  a  case  he  directed  without  his  consent.^  And  a 
purchaser  brought  into  court  upon  a  doubtful  title  ought  to  be 
discharged  with  costs.^  So  a  purchaser  is  not  coiupelled  to  take  a 
doubtful  title,  although  the  defect  appeared  on  the  abstract,  de- 
livered before  he  filed  his  bill.^  So  the  Court  will  not  compel 
specific  performance  of  an  agreement,  and  oblige  a  defendant 
to  accept  a  title,  which  the  complainant  cannot  make  out  to  be 
clearly  good  and  free  from  incumbrances.^  So  upon  a  bill  for 
specific  performance,  if  the  vendor's  title  to  a  part  of  the  land 
is  doubtful,  the  Court  cannot  compel  him  to  make  good  that 
part  by  a  conveyance  of  land  out  of  the  same  survey,  to  which 
he  has  an  undisputed  title,  but  will  give  a  compensation  in  money.''' 
And,  in  general,  the  Court  will  not  compel  a  purchaser  to  take 
a  title  depending  upon  matter  of  fact,  if  the  fact  do  not  admit  of 
satisfactory  proof,  or  be  not  well  proved.^  So  a  purchaser  was  not 
compelled  to  take  a  title  depending  on  the  questions,  whether 
a  deed,  not  delivered,  but  merely  retained  by  the  vendor  until 
payment  of  the  money,  could  be  considered  an  escrow  ;  as  between 
a  judgment  creditor  and  the  assignees  in  bankruptcy  of  the  ven- 
dor, whether  payment  to  the  assignees  would  be  a  performance 
of  the  condition,  making  the  deed  absolute  from  the  beginning, 
and  any  conveyance  from  the  assignees  inoperative ;  if  not  an 
escrow,  but  absolute  from  the  commencement,  whether,  with 
reference  to  the  Stat.  James  I.,  ch.  19,  §  9,  the  judgment  would 

1  Cooper  V.  Denne,  1  Ves.  565 ;  Trent  ^  Roake  v.  Kidd,  5  Ves.  647. 

V.  Harming,  10  Ves.  500 ;    Roake  v.  Kidd,  ^  Blos.se  v.  Clanmorris,  3  Bligh,  62. 

5  Ves.  647 ;    Price  v.   Strange,  6  Madd.  &  Stapylton  v.  Scott,  16  Ves.  272. 

159  ;    Hartley  v.  Pehall,  Peake's  Cas.  131;  6  Butler  v.  O'Hear,  1  Desaus.  382. 

Jervoise  v.  Northumberland,  1  Jac.  &  W.  "^  Kelly  v.  Bradford,  3  Bibb,  317. 

569 ;   Marlow  v.  Smith,  2  P.  Wms.  198.  8  Smith  v.  Death,  5  Madd.  371. 

2  Kelly  V.  Bradford,  3  Bibb,  317. 

(a)  The  rule  appears  to  be  now  well  question  of  title  or  no  title  being  matter 

established,  as   stated  in  the  text.     For-  of  opinion  for  the  Court,  that  the  purcha- 

nierly,  in  compelling  a  purchaser  to  take  ser  is  bound  bj'  that  opinion,  and  cannot 

a  title,  the  Court  acted  merely  upon  its  object  to  take  the  title  on  the  ground  of 

own   opinion.     Jervoise   v.   Northumber-  the  difficulty  of  the  question  on  which  it 

land,  1  Jac.  &  Walk.  569.  depends.     Rushton  v.  Craven,   12  Price, 

Upon  a  decision  of  the  Court  of  Ex-  599. 
chequer,  that  a  presumption   from   non-  Specific     performance     was     decreed 

payment  of  tithes  could  not  bar  even  a  against  a  purchaser  under  a  power  of  sale 

lay   impropriator,    the   Lord    Chancellor,  in  a  mortgage,   without   the   mortgagor, 

though    holding    the    contrary    opinion,  though   under   a   covenant  to  the  mort- 

would  not  compel  a  purchaser  to  take  such  gagee  to  join  in  a  sale  ;  but  without  costs, 

a  title;  and  dismissed  the  bill  against  him  the   only   authority   produced  not   being 

for  specific  performance.    Rose  v.  Calland,  in   print.      Corder    v.   Morgan,    18   Ves. 

5  Ves.  186.     But  it  has  been  held,  the  344. 


CHAP.   XII.] 


TITLE    OF    THE    VENDOR. 


21; 


be  operative  as  against  the  lien  of  the  assignees  for  the  price  ;  and, 
if  not,  wliat  would  prevent  its  attaclring  on  the  estate.^  So  it 
being  doubtful,  on  the  construction  of  an  inclosure  act,  whether 
an  allotment  for  a  right  of  warren  was  authorized  Ijy  the  act ; 
held,  tlie  title  to  the  allotment  was  not  such  as  a  jjurchaser  could 
be  compelled  to  take.^  So  in  case  of  mortgage  witli  a  power  of 
sale,  the  unsupported  solemn  declaration,  under  Stat.  5  &  6 
William  lY.,  ch.  62,  of  the  mortgagee  alone,  of  a  default  having 
been  made,  is  not  sufficient  evidence  of  that  fact,  as  between 
vendor  and  purchaser.'^(«) 


1  Sloper  V.  Fish,  2  Ves.   &   B.   145; 
Colmore  v.  Tindall,  2  Y.  &  Jerv.  605. 


706. 


2  Cassamajor  v.  Strode,  2  Myl.  &  Kee. 


3  HoLson  V.  Bell,  2  Beav.  17. 


(a)  Action  by  the  vendor,  upon  a  con- 
tract for  the  sale  and  exchange  of  lands, 
the  title  to  be  "satisfactory  to  the  party 
to  receive  it."  Answer,  that  the  lands 
were  subject  to  the  lien  of  certain  judg- 
ments, which  the  plaintiff  was  to  convey 
on  the  day  appointed  for  tlie  exchange  of 
deeds.  Held,  the  defendant  could  not 
show,  that  the  judgments  were  an  appa- 
rent thougli  not  a  real  lien,  and  therefore 
a  cloud  upon  the  title.  Fagen  v.  Davison, 
2  Duer,  153. 

An  agreement,  made  in  1849,  recited, 
that  the  fatlier  of  the  plaintiff,  in  1797, 
demised'  certain  premises  to  one  A.,  and 
that  the  plaintiff,  under  a  devise  from  liis 
father,  owned  the  reversion  in  fee.  The 
agreement  then  provided,  that  the  plain- 
tiff would,  on  receiving  from  the  defend- 
ant $2,000,  in  certain  annual  instalments, 
with  interest,  the  last  payable  in  1859, 
convey  the  property  with  warranty,  ex- 
cepting any  title  or  right  under  the  lease. 
The  defendant  agreed  to  pay  the  $2,000 ; 
and  it  was  agreed  that  he  should  enter 
immediately  and  pay  tlie  taxes.  The 
plaintiff  brings  this  action  for  an  instal- 
ment of  the  principal  and  the  interest. 
The  answer  alleged,  that  the  farm  or  a 
large  part  of  it  was  in  possession  of  per- 
sons holding  or  claiming  adversely,  but 
stated  no  facts  constituting  such  adverse 
possession.  Held,  as  the  agreement  re- 
cited that  the  plaintiff  was  a  reversioner, 
the  plaintiff  was  not  bound  to  have  given 
possession ;  that  he  did  not  agree  to  give 
possession,  but  the  defendant  was  to  take 
it,  and  be  himself  the  actor ;  and  that  tlie 
answer  was  no  defence,  as  there  can  be  no 
adverse  possession  against  a  reversioner. 
Clarke  v.  Hughes,  13  Barb.  147. 

By  an  unsealed  instrument,  A.,  in  con- 
sideration of  £7,000,  agreed  to  present  to 


a  rectory,  on  the  next  avoidance,  such 
person  as  B.  should  nominate,  and  to  fur- 
nish an  abstract  and  execute  a  convey- 
ance of  the  next  presentation  to  B.  A. 
afterwards,  with  the  assent  of  B.,  agreed 
to  sell  the  next  presentation  to  C,  and  to 
convey  such  title  as  he  (A.)  had  received, 
in  consideration  of  £7,500,  of  which  .£500 
was  to  be  paid  to  B.  on  a  certain  day. 
A.  furnished  an  abstract  of  such  title  as  he 
had,  but  C.  refused  to  take  it,  and  no  con- 
veyance was  tendered  to  him.  In  an  ac- 
tion by  B.  against  C.  for  the  £500,  held, 
that  there  was  a  sufficient  consideration 
for  C.'s  promise  ;  that  A.  was  not  bound 
to  make  a  marketable  title,  but  only  to 
convey  sucli  as  he  had  received ;  and 
that,  as  C.  refused  to  accept  that  title, 
it  was  not  necessary  to  tender  a  convey- 
ance. Wilmot  V.  Wilkinson,  6  B.  &  C. 
506. 

In  Dwight  V.  Cutler,  3  Mich.  575,  upon 
the  question  how  far  a  vendor  is  bound,  by 
his  contract,  to  convey  a  perfect  title  to 
the  vendee,  the  Court  say  :  "  Such  accept- 
ance created  an  agreement  between  the 
parties  by  which  the  plaintiff  simply  en- 
gaged to  sell,  and  the  defendant  to  pur- 
chase, the  premises,  on  the  terms  specified, 
nothing  being  said  about  the  title  or  the 
covenants  which  should  be  contained  in  the 
deed  by  which  they  should  l)e  conveyed. 
The  plaintiff  tendered  a  deed  of  tiie  prem- 
ises, with  covenants  against  her  own  acts 
merely,  which  she  claimed  was  a  compli- 
ance with  this  contract.  The  defendant 
refused  to  receive  this  <leed  and  execute  a 
mortgage  for  tlie  purchase-money,  on  the 
ground,  first,  that,  as  he  alleged,  the  prem- 
ises were  incumbered  ;  and  st'condiy,  be- 
cause the  deed  did  not  contain  the  usual 
covenants  of  seisin,  against  incumbrances, 
and  of  general  warranty.    No  doubt  the 


214 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XII. 


6.  But  on  the  other  hand  it  is  sometimes  held,  that,  in  order  to 
maintain  a  hill  for  specific  performance,  a  vendor  need  only  prove 
a  good  ^narketahle  title ;   not  one  which  may  not  possihly  be  de- 


contract  bound  the  plaintifF  to  make  a 
good  title.  She  agreed  to  sell  the  prem- 
ises, not  to  execute  a  deed  of  whatever 
title  she  had  to  them.  And  in  every  con- 
tract for  the  sale  of  land,  unless  the  con- 
trary intention  is  expressed,  there  is  an 
implied  undertaking  on  the  part  of  the 
vendor,  available  at  law  as  well  as  in 
equity,  while  the  contract  remains  execu- 
tory, to  make  out  a  good  title  clear  of  all 
defects  and  incumbrances.  (Eawle  Co. 
for  Tit.  430,  et  seq. ;  Senter  v.  Drake,  5 
Barn.  &  Ad.  992;  Sharin  v.  Fickling,  2 
Rich.  361 ;  Breitliaupt  v.  Thurmond,  3  ib. 
216 ;  Creigh  v.  Shatto,  9  Watts  &  Serg. 
82 ;  in  the  matter  of  Humber,  1  Ed.  Ch. 
K.  1;  Hall  V.  Betty.  4  Man.  &  Gr.  410; 
Purvis  V.  Raver,  9"^  Price,  488 ;  Pomeroy 
V.  Drury,  14"Barb.  S.C.  R.  418;  Hunter 
V.  O'Neil,  12  Ala.  87 ;  Greenwood  v. 
Ligon,  10  S.  &  M.  615;  Owings  v.  Bald- 
win, 8  Gill,  337.)  It  does  not  appear  in 
the  present  case  whether  the  plaintiff  had 
a  good  title  or  not,  but  only  that  the 
defendant  made  certain  objections  to  the 
title  when  a  deed  was  tendered  to  him. 
The  rule  in  England,  where  titles  are  not 
registered,  unquestionably  is,  that  the 
vendor  in  such  a  contract,  in  order  to 
show  performance,  or  an  offer  to  perform 
on  his  part,  whether  in  an  action  at  law 
for  the  purchase-money,  or  in  a  suit  in 
equity  to  compel  specific  performance, 
must  prove  affirmatively  that  he  has  a 
good  title.  But  it  would  seem  that  in 
this  coimtry,  where  titles  are  recorded, 
and  at  all  times  open  to  the  inspection  of 
both  parties,  a  different  rule  prevails.  It 
has  been  assumed  in  many  cases  of  ac- 
tions by  the  vendor  to  recover  the  pur- 
chase-money (among  otliers,  see  Little  v. 
Paddleford,'  13  N.H.  167,  and  Feemster 
V.  May,  13  Sm.  &  Marsh.  272),  and  was 
expressly  decided  in  Breitliaupt  v.  Thur- 
mond, 3  Rich.  S.C.  R.  216 ;  Brown  v. 
Bellows,  4  Pick.  179,  193,  that  the  ven- 
dor miglit  rely  upon  his  tender  of  a  deed 
without  producing  the  evidence  of  his 
title,  the  burden  being  on  the  purchaser 
to  show  sucli  a  defect  in  the  title  as  would 
justify  him  in  refusing  to  accept  the 
deed.  See  also  Espy  v.  Anderson,  2  Harr. 
(Penn.)  R.  308.  We  think  this  a  safe, 
reasonable,  and  convenient  rule,  and  in 
accordance  with  the  general  understand- 
ing of  the  profession  in  this  country. 
And  althougli  there  may  be  differences  of 
opinion  as  to  the  ground  on  whicli  it 
should  be  made  to  rest,  we  are  inclined  to 


adopt  it,  and  to  hold  that  in  the  absence 
of  any  finding  to  the  contrary,  we  must 
as.sume  that  the  plaintiff  in  this  case  ten- 
dered a  good  title  to  the  defendant.  The 
only  remaining  inquiry  under  this  head 
is,  whether  the  deed  tendered  by  the 
plaintiff  containing  covenants  against  her 
own  acts  only,  was  such  as  the  contract 
required.  We  think  it  may  be  laid  down 
as  a  general  rule,  tliat,  in  every  contract 
for  the  sale  of  lands,  the  vendor,  unless 
he  acts  in  a  mere  ministerial  or  fiduciary 
capacity,  or  there  is  something  in  the 
terms  of  the  contract,  or  attendant  cir- 
cumstances, which  shows  a  contrary  in- 
tention, impliedly  engages,  not  merely,  as 
we  have  before  said,  to  give  a  good  title, 
but  also  to  convey  by  a  deed  containing 
the  usual  covenants.  This  has  always 
been  the  settled  law  in  England,  and  we 
think  is  in  accordance  with  the  general 
understanding  of  the  parties  to  such  con- 
tracts. In  England,  the  usual  covenant 
of  warranty  on  a  conveyance  of  real  es- 
tate is  a  covenant  against  the  vendor's 
own  acts  merely,  except  in  cases  where 
the  vendor  does  not  claim  by  purchase  in 
the  popular  signification  of  that  term,  in 
which  case  the  covenant  extends  to  the 
acts  of  the  last  person  who  thus  claimed 
by  purchase,  and  accordingly  such  limited 
covenant  is  there  held  sufficient.  But  as 
has  been  well  said  by  Mr.  Rawle  in  his 
recent  work  on  Covenants  for  Title  (p. 
559),  owing  to  various  causes,  the  practice 
of  conveyancing  differs  widely  on  the 
opposite  sides  of  the  Atlantic.  It  is  obvi- 
ous, moreover,  tliat  many  of  the  usages 
of  conveyancing  which  prevail  where  the 
state  of  society  has  for  a  long  time  been 
permanent,  the  titles  old,  and  to  a  greater 
or  less  extent  carefully  examined  at  every 
purchase,  lose  their  application  in  a  com- 
paratively new  coimtry.  The  same  cov- 
enants which  might  satisfy  a  purchaser  in 
England  or  Massachusetts,  might  not  sat- 
isfy a  purchaser  in  Texas  or  California. 
As  precision  of  conveyancing  increases 
with  the  steady  rise  of  property,  and  as 
the  titles  become  better  known,  a  purcha- 
ser is  less  anxious  for  general  covenants 
than  where  he  buj's  in  comparative  igno- 
rance of  the  title,  and  relies  on  such  cov- 
enants for  protection.  Hence  the  greatest 
difference  will  be  found  to  exist  between 
the  law  and  practice  on  this  point,  not  only 
on  the  different  sides  of  the  Atlantic,  but 
between  different  States.  In  Pennsylva- 
nia, the  Supreme  Court  have  laid  it  down 


CHAP.    XII.] 


■TITLE    OF    THE   VENDOR. 


215 


feated.^  Thus,  in  case  of  an  agreement  to  convey  land,  the  title 
to  he  "  good  and  satisfactory  to  the  party  to  receive  it ;  "  tlie  pur- 
chaser is  bound  to  accept  a  title  free  froni  any  reasonahlc  ohjec- 
tion,^  So  a  good  title  may  be  made,  although  the  origin  cannot  be 
shown  by  any  deed  or  will ;  by  proof  of  such  a  long,  uninlorruptcd 
possession,  enjoyment,  and  dealing  with  the  property,  as  afford  a 
reasonable  presumption  that  there  is  an  absolute  title  in  fee-sim- 
ple.^ 

7.  And,  contrary  to  the  prevailing  doctrine  upon  this  subject, 
which  is  as  above  stated  ;  it  has  been  questioned,  whether  a  cove- 
nant to  give  a  good  and  lawful  deed  relates  to  the  form  of  the  deed, 
or  to  the  goodness  of  the  title.^  So  it  has  been  held,  that  a  bond,  to 
make  title  free  from  incumbrances,  is  fulfilled,  by  a  conveyance  in 
fee-simple  free  from  incumbrances,  accepted  by  the  vendee.^  So, 
in  case  of  an  agreement  to  give  a  deed  of  three  out  of  sixteen  tene- 
ments to  the  biiilder,  when  completed ;  held,  the  deed  must  be  a 
conveyance  in  fee-simple,  of  the  three  tenements  designated  by  the 
parties,  with  a  covenant  against  incumbrances  done  or  suffered  by 
the  grantor.*^     So  an  agreement,  on  a  sale  of  land,  "  to  execute  a 


1  Thompson  v.  Dulles,  5  Rich.  Eq.  370. 

2  Fagen  r.  Davison,  2  Duer,  153. 

3  Cottrell  V.  Watkins,  1  Beav.  3G1. 


*  Winne  v.  Reynolds,  6  Paige,  407. 

5  Johnson  v.  Collins,  17  Ala.  318. 

6  Ellis  V.  Burden,  1  Ala.  (N.S.)  458. 


as  a  general  rule,  that  a  purchaser  has  no 
right  to  expect  covenants  of  greater  scope 
than  against  the  acts  of  the  vendor  and 
his  heirs,  and  that  an  agreement  to  con- 
vey by  warranty  deed  means,  in  popular 
phrase,  a  deed  with  special  warranty. 
Witters  v.  Baird,  7  Watts,  220 ;  Espy  v. 
Anderson,  2  liar.  312.  Mr.  Rawle  ex- 
presses the  opinion,  that,  in  tlie  larger 
towns  of  that  State,  such  is  the  only  ex- 
press covenant  for  title  usually  inserted  in 
conveyances.  In  Kentucky,  it  was  held 
from  an  earlj'  day,  to  be  both  the  settled 
rule  and  practice  in  that  State,  that,  unless 
where  there  was  a  special  contract  to  the 
contrary,  a  covenant  of  general  warranty 
must  be  given,  and  such  seems  still  to  be 
the  rule.  Fleming  v.  Harrison,  2  Bibb, 
171 ;  Vanada's  Heirs  v.  Hopkins,  1  J.  J. 
Marsh.  2y3;  Hedges  v.  Kerr,  4  B.  Mon. 
528.  So  in  Indiana,  a  bond  conditioned 
"for  making  a  lawful  title"  was  held  to 
require  a  general  warranty.  Clark  v. 
Redman,  1  Blackf.  37'J.  So  where  in 
Ohio  it  was  said  (Tremaine  v.  Lining, 
Wright,  644),  that  "  a  contract  for  a  good 
and  sufficient  deed,  means  a  doed  with  a 
covenant  of  warranty,"  it  is  presumed  that 


a  general  warranty  is  meant.  So  in  Vir- 
ginia, it  was  held  in  Rucker  v.  Lowther 
(G  Leigh,  259),  that  where  L.,  attorney 
for  C,  covenanted  to  sell  and  convey  land 
to  B.  according  to  a  power  of  attorney 
given  him  by  C. ;  this  was  a  covenant 
for  a  conveyance  by  C.  with  general 
warranty,  unless  the  power  of  attorney 
referred  to  in  the  covenant  confined  the 
attorney  to  a  special  warranty,  and  it  was 
shown  to  the  purchaser  at  the  time  of  the 
contract,  or  its  contents  fairly  and  fully 
stated  to  him.  But  see  Pennington  v. 
Hanley,  4  Munf.  140 ;  Fuller  v.  Hubbard, 
6  Cow.  13.  No  doubt  it  is  the  general 
usage  in  this  State,  and  probably  in  most 
of  the  Western  States,  to  convey  land  by 
deeds  containing  the  covenant  of  general 
warranty,  upon  the  princijjle  that  an 
agreement  to  convey,  where  there  is  noth- 
ing to  show  a  contrary  intention,  gives  a 
right  to  the  usual  covenants  for  title. 
We  think  the  plaintiff  was  bound  in  the 
present  case  to  convey  by  a  deed  contain- 
ing a  general  warranty  ;  and  that  the  con- 
veyance tendered,  which  contained  a  cov- 
enant against  her  own  acts  merely,  was 
not  a  compliance  with  her  contract." 


216  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XII. 

deed  "  to  the  purchaser,  has  been  held  satisfied  by  executing  a 
deed  without  warranty  or  covenants.^(a) 

1  Van  Eps  v.  Corporation  of  Schenectady,  12  Johns.  436. 

(a)  An  execution  sale  is  only  of  the  in-  terfere  in  case  of  a  merely  defective  title, 
terest  of  the  defendant.  Ilamsmirtli  v.  though  it  may,  upon  seasonable  applica- 
Espy,  19  Iowa,  444.    Equity  will  not  in-    tion,  if  there  is  a  total  ivant  of  title.     lb. 


CHAP.    XIII,]  REQUISITES   OF   A   VALID    TITLE.  217 


CHAPTER    XIII. 


REQUISITES    OF   A    VALID    TITLE. 

1.     In  what  a  valid  title  consists ;  a  doubt-  22.     Title   in   case   of   leasehold  interests 

ful  title  is  insufficient;   qualifications  of  the  and  rents. 

rule;  burden  of  proof.  29.     Title  as  affected  hy  judgment s,  &c. 

6.     Legal  or  equitable  title.  34.     Title  as  connected  with  bankruptcy. 

9.     Title  by  deed.  35.     Presumption  of  title. 

12.  By  recovery.  37.     Title  by  limitntiim  and  lapse  of  time. 

13.  By  destruction  of  contingent  remain-  38.  Title  derived  from  married  women, 
ders.  infants,  and  aliens. 

14.  By  will,  and  other  assurances  con-  42.  Miscellaneous  questions  of  title.  — 
netted -with,  the  estates  oj" persons  deceased.  Time  allowed  for  perfecting  a  title. 

1.  Having  considered  the  general  obligation  of  a  vendor  to  fur- 
nish a  good  title,  in  order  to  maintain  a  suit  for  the  price,  the  nat- 
ural succession  of  topics  demands  a  summary  view  of  the  various 
forms  or  modes  in  which  a  title,  such  as  the  vendor  is  required  to 
make,  may  exist,  or  of  the  assurances  and  transfers  by  which  it 
may  be  created.  A  full  analysis  of  the  subject  of  title  to  real 
property  is  appropriately  to  be  found  in  treatises  upon  executed 
alienations,  such,  as  inheritance,  deed,  or  devise,  and  not  in  a  work 
like  the  present,  which  relates  wholly  to  executory  contracts.  The 
brief  abstract,  however,  whicli  we  propose  to  present,  of  the  ele- 
ments that  enter  into  a  good  title,  seems  to  be  necessary,  in  order 
to  perfect  and  make  intelligible  the  general  proposition,  that  such 
a  title  is  demanded  from  the  vendor.^ 

la.  In  general,  a  title  exposed  to  litigation  is  held  bad.^  In  a 
late  case,  where  the  Master  of  the  Rolls  had  held,  that  certain 
trustees  under  whom  the  vendor  claimed  did  not  take  the  entire 
fee,  but  a  fee  determinable  on  payment  of  debts  and  legacies  and 
the  death  of  the  vendor  ;  while  one  of  the  Lord  Justices  on  appeal 
inclined  to  the  opinion  that  they  took  an  absolute  estate  ;  and  the 
former  opinion  had  been  acted  upon  for  a  number  of  years  :  it  was 
held,  that  the  title  was  not  one  which  ought  to  be  forced  upon  a 
purchaser  ;  and  the  appeal  was  dismissed.^ 

1  See  Minton  v.  Kirkwood,  Law  Rep.  (Eng.)  Eq.,  March,  18G6,  p.  449. 

2  Spcaknian  v.  Forepaugji,  44  Peiin.  8G3.     ISee  p.  210. 

3  Collier  v.  M'Bean,  Law  Hep.  (Eng.)  Eq.,  February,  18GG,  p.  81. 


218  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    XIII. 

2.  But  although,  as  has  been  ah-eady  explained,  a  purchaser  will 
not,  more  especially  upon  a  bill  for  specific  performance,  be  com- 
pelled to  accept  a  doubtful  title  ;  yet,  acting  on  a  moral  certainty, 
the  Court  will  not  permit  him  to  reject  a  title,  upon  the  ground 
that  there  is  a  hare  possibility  of  its  proving  to  be  imperfect.^  Math- 
ematical certainty  is  not  required.^  Thus  mere  suspicion  upon 
opinions  in  the  abstract,  &c.,  will  not  support  an  objection  by  a 
purchaser.^  So  an  outstanding  title,  which  will  justify  a  vendee  in 
withholding  the  purchase-money,  must  be  paramount  to  that  of  the 
plaintiff.^  So  where  a  purchaser  of  land  from  the  assignees  under 
a  voluntary  assignment  gave  bond  for  the  purchase-money,  and, 
on  being  sued  thereon,  interposed  as  a  defence  that  the  title  was 
doubtful  ;  held,  it  was  necessary  to  prove  that  tlie  title  was 
bad.°(a). 

3.  Upon  the  same  principle,  with  regard  to  the  burden  of  proof 
upon  a  question  of  title,  it  has  been  held,  that  in  an  action  against 
the  purchaser  of  land  the  vendor  is  not  bound  to  show  title.  The 
contract  admits,  at  lea&t'primd  facie,  his  title,  and  the  onus  is  on 
the  defendant  to  show  that  he  has  none.  So  where  a  party  con- 
tracts to  buy  land,  styling  the  vendor  trustee,  he  admits  the  ven- 
dor's character  as  trustee,  and  primd  facie  his  right  to  convey. 
If,  therefore,  the  vendor  has  no  right  to  convey,  the  onus  of  show- 
ing it  is  on  the  defendant.^  So,  primd  facie,  he  who  enters  on 
land,  under  a  contract  to  purchase,  admits  the  title  of  the  vendor 
to  be  good ;  and,  if  he  fails  to  comply  with  the  terms  of  the  con- 
tract, he,  or  any  one  holding  under  him,  cannot,  in  an  action  by 
the  vendor  to  regain  possession  of  the  land,  put  the  vendor  to  proof 

1  Laurens  v.  Lucas,  6  Rich.  Eq.  217.  *  Hite  v.  Kier,  38  Penn.  72. 

2  Emery  v.  Groeock,  6  Madd.  54.  5  Crawford  v.  Murpliy,  22  Penn.  84. 

3  M'Queen  v.  Farquliar,  11  Ves.  467.  ^  Breithaupt  v.  Tluu-mond,  3  Rich. 
See  infra,  21  a.  216. 

(a)  The    defendant,    A.,    covenanted,  adverse  claim    to  the  farm,  and  the  pen- 

upon  the  plaintiff's  ai^reeing  to  give  an  dency  of  a  suit  respecting  it,  at  the  time 

extension  of  credit  to  E.,  on  his  executing  of  foreclosing  a  prior  mortgage,  did  not 

a  mortgage  for  iSl.OOO,  that,  "if  the  title  establish  a  defect  in  the  title,  or  constitute 

of  the  said  B.  is  good  [which  said  A.  does  any  defence  to  an  action  on  the  covenant, 

not  warrant],  the  same   [I.e.,   the   farm]  Mahaiwe  Bank  v.  Culver,  30  N.Y.  313. 
shall  bring  on  foreclosure  sufficient,  after         It  is  no  objection  to  a  title,  that  there 

payment  of"  certain  prior  mortgages,  "  to  are   mortgages   on   record,  the   agent  of 

satisfy  the  said  mortgage  "  to  the  plain-  the  mortgagee,  to  whom  they  were  sent, 

tiff,  &c.     Held,  an  absolute  covenant,  that,  having  rejected  and  returned  them  to  the 

on  foreclosure,  the  premises  should  bring  mortgagor,  for  a  mistake  in  the  mortga- 

enough  to  pay   the  plaintiff's  mortgage,  gee's  name.     Wilsey  v.  Dennis,  44  Barb. 

"  if  tiie  title  of  B.  is  good."    Hence  that  an  354. 


CHAP.    XIII.]  REQUISITES    OF    A    VALID    TITLE.  210 

of  his  title.^  But,  on  the  other  hand,  the  more  rigid  rule  as  to  the 
vendor  has  been  adopted,  that,  where  relief  is  prayed  against  him, 
in  consequence  of  his  being  unable  to  make  a  title,  his  answer 
must  not  merely  assert  that  he  has  a  good  title,  but  must  show  his 
title.2  So,  in  a  suit  by  a  vendee  to  rescind  a  contract  for  want  of 
title  in  the  vendor,  and  calling  on  him  to  exhibit  his  title,  the  ven- 
dor must  exhibit  the  deeds,  and  other  writings  if  there  be  any,  by 
which  he  derives  title  ;  and  he  must  show  a  paper,  not  a  j^^rol 
title.3 

4.  Where  the  purchaser  of  an  interest,  sold  under  a  decree  in 
Chancery,  thereby  acquires  information  as  to  a  supposed  defect  in 
the  title  to  that  interest,  and  improperly  avails  himself  of  such 
information,  by  purchasing  the  estate  of  the  person,  Avho  alone 
could  have  taken  advantage  of  the  supposed  defect ;  such  pur- 
cliaser  will  not  be  allowed  the  benefit  of  the  general  rule  as  to 
doubtful  titles.^ 

5.  Objections  by  a  purchaser  of  allotments  under  an  inclosing 
act,  that  the  award  of  the  commissioners  was  not  made,  were  over- 
ruled ;  the  act  enabling  a  sale  and  declaring  the  conveyance  valid 
before  the  award  ;  and,  even  if  the  commissioners  should  vary 
the  allotments,  the  purchaser  having  full  notice  of  all  the  cir- 
cumstances.^ 

6.  The  question  has  often  arisen,  whetherthe  title  which  a  piir- 
chaser  is  bound  to  accept  must  be  a  legal  title,  and  also  whether 
a  mere  legal  title  is  sufiicient,  if  there  are  any  equitable  objections 
to  it.  Upon  these  points  the  authorities  are  somewhat  conflicting, 
though  the  general  rule  undoubtedly  is,  that  a  purchaser  is  not  to 
be  compelled  to  take  an  equitable  estate.*'  More  especially  if  a  ven- 
dor represents  his  title  to  be  good,  it  is  the  same  as  saying  his  title 
is  perfect  for  the  entire  tract,  unaffected  by  any  gaps  in  the  chain  of 
title,  or  any  flaw  or  incumbrance  whatever.'^  So,  where  the  ven- 
dor of  newly  inclosed  lands  undertakes  to  convey  them  ;  this  is  an 
undertaking  to  convey  the  legal  estate ;  and,  the  vendor  having 
only  an  equitable  interest  previous  to  the  assignment  by  the  com- 
missioners, the  vendee  is  entitled  to  recover  his  deposit.^  So 
where  a  vendor  covenanted  that  he  would  make  or  cause  to  be 

1  Pyles  V.  Reeve,  4  Ricli.  555.  ^  Kingsley  v.  Young,  17  ^\'S.  4G8;  18 

2  Boyer  v.  Porter,  1  Tenn.  25S.  Ves.  207. 

3  Metcalfe  v.  Dallam,  4  J.  J.  Marsh.        «  Abel  r.  Ileatlicote,  2  Ves.  100. 
200.  7  Smith  v.  Robertson,  23  Ala.  312. 

*  Sheppard  v.  Doolan,  3  Dru.  &  W.  1.  «  Cane  v.  Baldwin,  1  Stark.  Cas.  65. 


220  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    XIII. 

made  to  the  vendee  a  good  and  sufficient  deed,  upon  payment  of 
the  balance  of  the  purchase-money  ;  held,  the  vendee,  who  had 
gone  into  and  remained  in  possession,  could  not  be  compelled  to 
accept  an  equitable  title.^  So  it  is  held,  that  a  covenant  to  convey 
the  title  means  the  legal  estate  in  fee,  free  from  all  valid  claims, 
liens,  or  incumbrances.^  So  where  a  vendor  sold  land  clear  of  all 
incuml)rances,  and,  at  the  time  of  action  brought  for  the  purchase- 
money,  and  until  the  time  of  trial,  held  only  an  incumbered  equi- 
table title,  the  fee  being  in  a  third  person  ;  held,  he  could  not 
recover.^ 

7.  While  a  mere  equitable  title  has  been  held  insufficient,  on 
the  other  hand  it  has  been  decided  that,  in  an  action  to  recover 
back  the  deposit  on  a  purchase,  upon  the  vendor's  failure  to  make 
a  good  title,  the  Court  will  collaterally  inquire  whether  the  title 
be  good  in  equity.  For  a  contract  to  make  a  good  title  means  a 
title  good  both  at  law  and  in  equity  ;  and  a  Court  of  Law  will 
adjudge  a  title  to  be  either  good  or  bad,  having  no  middle  term  for 
it.  Thus  where  one  buys  a  house  at  auction,  and  deposits  part  of 
the  purchase-money,  the  remainder  to  be  paid  upon  the  vendor's 
making  a  good  title,  and  the  title  is  good  in  law,  but  bad  in 
equity  ;  the  purchaser  may  recover  back  the  deposit  in  an  action  at 
law.4 

S>.  But  on  the  other  hand,  where  imder  a  limitation  in  a  mar- 
riage settlement  to  the  husband  for  life,  then  to  the  wife  for  life, 
then  to  the  heirs  of  the  body  of  the  wife  and  their  heirs,  the  wife 
took  an  estate  tail ;  although  it  was  recited  in  the  deed,  that  the 
husband's  fatlier  conveyed  in  consideration  of  the  marriage,  and 
"  for  settling  and  establishing  the  lands,  &c.,  to  the  uses  thereafter 
expressed,"  and  subsequent  uses  were  added  in  the  deed :  the 
Court  would  only  take  notice  of  the  legal  estate ;  and,  the  hus- 
band and  wife  having  levied  a  fine,  and  agreed  to  sell  the  estate  to 
a  purchaser,  from  whom  they  had  received  part  of  the  purchase- 
money,  he  could  not  recover  it  back,  in  an  action  for  money  had 
and  received.^  So  in  a  later  case,  of  assumpsit  to  recover  money 
deposited  upon  a  purchase,  upon  an  allegation  that  the  defendant 
had  failed  to  make  a  proper  title ;  it  was  held  that  a  Court  of  Law 

1  Jones  V.  Taylor,  7  Tex.  240.  *  Maberley  v.  Eobins,  1  Marsh.  258 ;  5 

2  pJones  V.  Gardner,  10  Johns.  266.  Taun.  625. 

3  Ragan  v.  Gaither,  11  Gill  &  Johns.  5  Alpass  v.  Watkins,  8  T.  R.  516. 
472. 


CHAP.    XIII.]  REQUISITES    OP    A    VALID    TITLE.  221 

will  not  consider  whether  the  title  is  of  a  doubtful  description,  such 
as  a  Court  of  Equity  would  not  compel  an  lunvilling-  purchaser  to 
take  ;  but  simply  whether  the  defendant  has  or  has  not  a  legal 
title  to  convey.^ 

9.  In  general,  a  title  by  deed  or  conveyance  is  the  one  most  fre- 
quent and  least  liable  to  objection.  But,  under  peculiar  circum- 
stances, a  purchaser  may  object  to  a  title  resting  on  this  foundation. 
Thus  title  under  a  deed  not  seasonably  recorded  is  bad.^  So 
under  a  contract  for  a  valid  and  perfect  title,  thougli  mentioning 
transfers  and  conveyances  of  titles  of  four  persons  named ;  the 
former  clause  is  not  controlled  by  the  latter.^  So  A.,  entitled 
under  his  marriage  settlement  to  a  life-interest  in  freehold 
estates,  with  remainder  to  the  use  of  trustees  for  a  term  of  one 
thousand  years,  to  secure  a  jointure  and  portions,  and  remain- 
der to  himself  in  fee,  conveyed  part  of  the  lands  to  B.  in  fee,  in 
exchange  for  others.  B.'s  heir  afterwards  having  contracted  for 
a  sale  of  the  land,  the  purchaser  refused  to  complete  the  contract, 
on  the  ground  that  A.  had  no  power  thus  to  exchange.  The  vendor 
then  procured  the  execution  of  certain  deeds,  with  a  view  of  bring- 
ing the  exchange  within  the  settlement,  which,  however,  were 
grossly  inaccurate.  Held,  the  purchaser  was  not  bound  specifically 
to  perform  the  agreenient.^  So  a  purchaser  is  not  compellable  to 
accept  a  title  reported  good  by  the  deputy  remembrancer,  in  a 
creditor's  suit,  where  the  close  in  dispute,  having  a  given  name, 
by  which  it  has  been  long  known,  is  not  described  by  it  in  the  title- 
deeds,  notwithstanding  the  vendor  has  been  long  in  possession  of 
the  land,  as  part  of  the  estate  conveyed  to  him  by  the  deeds.  Such 
a  title  is  merely  primd  facie.^ 

10.  But  gejierality  and  vagueness  of  descriptions  of  copyhold 
property  on  tlie  court-rolls  are  so  well  known,  that  a  vendor  is  not 
bound  to  show  how  the  description  on  the  court-roll  is  to  be  applied 
to  the  present  state  of  the  property,  if  he  prove  that  the  property 
has  actually  been  enjoyed  and  passed  under  that  description  for 
upwards  of  sixty  years.*^  And  where  a  vendee  is  in  possession  un- 
der a  conveyance  with  general  warranty,  and  the  title  has  not  been 
questioned  by  any  suit  prosecuted  or  threatened  ;  such  vendee  has  no 

1  Boyman  v.  Gutch,  7  Bing.  379.  *  Cowgill  v.    Oxiiiantown,    3   You.  & 

2  SiJeakman  v.  Forepaugh,   4-i  Penn.     Coll.  369. 

463.  5  Eyton  v.  Dicken,  4  Price,  303. 

"^  Jonghaus  v.  McCorniick,  18  Cal.  660.  *>  Long  v.  Collier,  4  lluss.  'I'ol. 


222  LAW    OF    VENDORS    AND    PURCHASERS.  [CHAP.    XIII. 

claim  to  relief  in  equity  against  the  payment  of  the  purchase-money, 
unless  he  can  show  a  defect  of  title,  respecting  which  the  vendor 
was  guilty  of  fraudulent  misrepresentation  or  concealment,  and 
which  the  vendee  had  at  the  time  no  means  of  discovering.^  So 
the  plaintiff,  at  the  instance  of  the  defendant,  purchased  all  the 
estate,  right,  title,  &c.,  in  certain  lands,  from  one  of  four  reputed 
owners,  and  agreed  to  convey  to  the  defendant;  "  [the  plaintiff]  only 
to  produce  a  title  from  his  vendor."  On  a  bill  for  specific  perform- 
ance ;  held,  it  was  not  open  to  the  defendant  to  show  aliunde  that 
the  plaintiff's  vendor  had  no  title,  and  specific  performance  was 
decreed.^ 

11.  The  vendee  is  not  hound  to  accept  a  title,  depending  on  a 
conveyance  to  a  creditor,  where  there  is  evidence  to  raise  a  suspi- 
cion that  the  object  of  the  conveyance  was  to  elude  other  creditors 
who  were  pressing  for  judgments.^  So  where  the  vendor  claims 
the  estate  by  purchase  from  his  son,  the  purchaser  is  entitled  to 
evidence  of  the  fairness  of  the  transaction.* 

12.  A  purchaser  is  not  bound  to  accept  a  title  depending  upon 
a  recovery,  suffered  by  a  tenant  in  tail,  of  lands,  the  reversion  of 
which  had  vested  in  the  Crown  by  attainder  of  the  reversioner.^ 

13.  In  one  case  the  Court  hesitated  upon  giving  sanction  to 
a  title,  founded  on  the  destruction  of  co7itinge7it  remainders  by  a 
tenant  for  life  ;  there  being  no  trustees  to  support  them.*^  But,  in 
a  later  case,  specific  performance  was  decreed,  although  the 
vendor's  title  was  founded  on  the  destruction  of  contingent  re- 
mainders.'' 

14.  Title  by  tvill  or  devise  is  hardly  less  common  or  important 
than  that  by  deed ;  and,  in  conformity  with  the  general  principle 
above  stated,  it  is  held,  that  a  purchaser  is  not  compelled  to  take  a 
title,  depending  upon  the  words  of  a  will,  which  are  too  doubtful 
ever  to  be  settled  without  litigation.^  Thus  a  testator  devised  all 
his  manors,  messuages,  lands,  tenements,  tithes,  and  hereditaments, 
and  all  his  real  estate  whatsoever,  "  except  what  is  hereinafter 
mentioned  and  devised,"  to  the  use  of  all  his  children  successively 
in  strict  settlement ;  and  gave  two  of  them  annuities,  which  he 
charged  upon  a  rectory  held  by  him  under  a  lease  for  lives,  which 

1  Beale  v.  Seiveley,  8  Leigh,  658.  <  Boswell  i-.  Mendham,  6  Madd.  373. 

2  Hume  V.  Pocock,  Law  Rep.  (Eng.)  5  Blosse  v.  Clanmorris,  3  Bligli,  62. 
Eq.  March,  1866,  p.  422 ;  ib.  July,  1866,  6  Roake  v.  Kidd,  5  Ves.  647. 

p.  378.  ''  Hasker  v.  Sutton,  2  Sim.  &  Stu.  513. 

^  Gans  V.  Renshaw,  2  Barr,  34.  8  Sharp  v.  Adcock,  4  Russ.  374. 


CHAP.    XIII.]  REQUISITES    OF    A    VALID    TITLE.  223 

lease  he  directed  to  be  renewed,  if  tliose  two  children,  or  cither, 
should  be  living  at  his  death  ;  and  that  their  lives  or  that  of  the 
survivor  should  be  inserted  in  the  new  lease,  and  the  fine  paid  out 
of  his  personal  estate.  He  gave  part  of  liis  personal  estate  specifi- 
cally ;  and  directed  the  residue  to  be  laid  out  in  land,  to  be  settled 
to  the  same  uses  as  his  real  estate ;  but  afterwards,  by  a  testamen- 
tary paper,  unattested,  disposed  of  his  personal  estate  otherwise. 
The  heir  contracts  to  sell  the  lease  of  the  rectory  ;  and,  upon  a  case 
directed  to  the  Court  of  King's  Bench,  on  his  bill  for  specific  per- 
formance, the  certificate  was,  that  the  lease  did  not  pass  l)y  the  will, 
but  devolved  on  the  heir  as  special  occupant ;  but  the  Lord  Chan- 
cellor considered  that  title  too  doubtful  to  be  forced  on  a  purchaser. 
An  act  of  Parliament  was  therefore  obtained.^  So  where  a  party 
was  authorized,  by  a  power  created  since  1838,  to  appoint  by  deed 
or  deeds,  writing  or  writings,  under  hand  and  seal,  attested  by  two 
witnesses,  and  made  a  will,  devising  and  bequeathing  the  property, 
dated  subsequently  to  the  Statute  7  Will.  IV.,  and  1  Vict.  ch.  2t3, 
and  executed  conformably  with  that  act ;  a  purchase,  depending  for 
its  title  upon  the  question  whether  it  was  valid,  was  held  not  to  be 
so  free  from  doubt,  as  that  a  purchase!"  was  bound  to  take,  and 
would  be  compelled,  in  a  suit  for  specific  performance,  to  accept 
it.^  So  a  testator  devised  to  his  wife,  in  fee,  all  his  real  estates  of 
which  he  might  die  possessed.  Subsequently  he  purchased  an 
advowson,  and  by  a  codicil  ratified  and  confirmed  his  will.  Pre- 
viously to  the  discovery  of  the  codicil,  the  wife  contracted  to  sell 
the  advowson,  but,  an  objection  having  been  taken  to  her  title,  the 
codicil  was  found  and  produced,  and  a  statutory  declaration  made 
by  the  attesting  witnesses,  as  to  its  due  execution  and  validity. 
The  purchaser,  however,  refused  to  complete,  on  the  ground  that 
the  codicil  did  not  pass  the  advowson,  and  also  requiring  it  to  be 
proved  in  the  Ecclesiastical  Court.  Held,  that  the  codicil  did  suf- 
ficiently refer  to  the  will,  but  that  the  evidence  of  its  validity  was 
insufficient ;  that  the  purchaser  could  not  be  compelled  to  take  the 
title,  without  the  proof  necessary  to  establish  a  will  against  the 
heir ;  and  that  the  codicil  ought  to  be  proved  in  the  Ecclesiastical 
Court.^  Held,  also,  the  title  not  being  completed  before  tlie  hearing, 
the  purchaser  was  not  liable  to  pay  interest ;  but,  the  suit  having 

1  Sheffield  v.  Mulgrave,  2  Ves.  526.  »  Weddall  v.   Nixon,  21  Eiig.  Law  & 

2  Collard  v.  Sampson,  21  Eng-.  Law  &     Eq.  9. 
Eq.  352. 


224  LAW   OF   VENDOES    AND    PURCHASERS.  [CHAP.   XIII. 

been  rendered  necessary  by  his  disputing  the  effect  of  the  codicil, 
even  if  proved,  as  a  republication,  he  was  not  allowed  costs.^  So 
in  case  of  devise  of  copyhold  estates,  the  legal  estate  being  outstand- 
ing, "  to  my  son,  R.  W.  G.,  to  be  entailed  upon  his  male  heirs,  and 
failing  such,  to  pass  to  his  next  brother,  and  so  on  from  brother  to 
brother,  allowing  £2,500  to  be  raised  upon  the  estates  for  female 
children  each;"  the  point  whether  this  was  a  trust  executed  or 
executory,  and,  if  the  latter,  whether  an  estate  tail  in  R.  W.  G. 
was  held  too  doubtful  to  compel  a  purchaser  to  take  the  title, ^ 

15.  A  purchaser  was  decreed  to  take  a  title  under  an  obscure 
will,  amounting  to  a  power  to  sell.  In  such  case,  the  legal  estate, 
not  being  given,  descends  to  the  heir  till  execution  of  the  power  : 
and  then  passes  to  the  vendee.^ 

16.  Where  an  estate  is  decreed  to  be  sold  for  payment  of  debts, 
and  no  surplus  remains,  the  heir  or  devisee  need  not  covenant  any 
further  than  for  his  own  acts.  But  where  the  surplus  is  consider- 
able, the  heir  must  covenant,  that  neither  he  nor  his  immediate 
ancestor,  and  a  devisee,  that  neither  he  nor  his  devisor,  have  done 
any  act  to  incumber."* 

17.  Exception  does  not  lie  to  a  report  in  favor  of  a  title  derived 
from  an  heir,  on  the  ground  that  the  reversion  in  fee  might  have 
been  disposed  of,  so  as  not  to  have  descended.^ 

18.  A  conveyance  in  1793,  from  persons  residing  in  Bermuda, 
of  lands  then  in  their  possession,  and  to  which,  subject  to  an  out- 
standing but  satisfied  mortgage  term,  they  claimed  title  under  an 
entail  created  in  1732,  through  a  descent  recited  in  the  deeds ;  a 
subsequent  assignment  of  the  mortgage  term  from  the  mortgagee 
to .  the  purchaser,  and  uninterrupted  enjoyment  under  his  convey- 
ance ;  —  will  not  enable  him  to  make  a  good  title,  if  unsupported 
by  extrinsic  evidence  of  the  pedigree  recited  in  the  deeds,  or  of 
possession  prior  to  1793,  conformable  to  that  pedigree.^ 

19.  Upon  the  death  of  one  of  two  partners,  intestate,  \\\^  personal 
representatives  agreed  to  sell  his  moiety  of  the  real  property  of  the 
partnership  to  the  other,  and  to  furnish  him  at  their  own  expense 
with  an  abstract  of  tbeir  title.  Held,  they  were  bound  to  furnish 
the  usual  abstract  of  titles,  and  not  merely  their  letters  of  admin- 
istration in  relation  to  the  personal  estate.'' 

1  Ibid.  4  Loyd  v.  Griffith,  3  Atk.  267. 

2  Jervoise  v.  Northumberland,  1  Jac.  ^  Sperling  v.  Trevor,  7  Ves.  497. 
&  W.  56U.                                                                 6  Fort  v.  Clarke,  1  Russ.  601. 

^  Warneford  v.  Thompson,  3  Ves.  513.  "^  Morris  v.  Kearsley,  2  You.  &  Coll.  139. 


CHAP.    XIII.]  REQUISITES   OF    A    VALID   TITLE.  225 

20.  A  testator  gave  his  real  and  personal  estate  to  A.,  subject  to 
the  payment  of  his  debts  and  certain  annuities,  and  appointed  him 
executor.  Held,  that  A,  could  make  a  good  title  to  the  real  estate, 
without  the  concurrence  of  the  annuitants,  and  that  a  purchaser 
from  A.  was  not  bound  to  see  to  the  application  of  the  purchase- 
money  ;  also,  that  the  objection  was  one  of  title  and  not  of  convey- 
ance.^ 

21.  A.  having  sold  the  real  estate,  the  purchaser,  insisting  that 
the  annuitants  ought  to  concur,  filed  a  bill  against  the  vendor  for 
specific  performance.  The  vendor's  answer  admitted  the  sufficiency 
of  the  personal  estate  to  pay  the  debts  ;  that  they  had  all  been  paid 
since  the  contract ;  and  that  the  sale  had  not  been  made  for  the  spe- 
cific purpose  of  satisfying  the  debts.  Held,  these  circumstances  did 
not  vary  the  rule  as  to  the  liability  of  the  purchaser  to  sec  to  the 
application  of  the  purchase-money,  and  he  was  bound  to  complete.^ 

21a.  Devise  of  all  the  testator's  worldly  effects.  The  debts  to 
be  paid  from  the  personal  estate,  and  the  executors  to  sell  "  all  his 
stocks,  shares,  securities,  &c.,  and  all  other  his  estate,  &c.,  and 
stand  possessed  of  the  proceeds  upon  trust  to  pay  debts,  &c.,  and 
invest  the  residue  thereof  upon  the  trusts  therein  declared."  After 
the  date  of  the  will  the  testator  became  possessed  of  a  freehold 
house,  which  was  put  up  for  sale  by  his  executrix,  who,  her  co- 
executor,  the  heir,  being  absent  from  the  country,  had  alone  proved 
the  will.  Upon  a  bill  brought  by  the  executrix  for  specific  per- 
formance against  the  purchaser,  it  appeared  that  one  of  the  convey- 
ancing counsel  of  the  court  had  given  an  opinion,  that  the  will  did 
not  authorize  a  sale.  Held,  notwithstanding  such  opinion,  as  the 
simple  expression  of  doubt  in  the  court  below  prevents  a  title  from 
being  forced  on  a  purchaser,  and  as  the  court  above  might  correct 
the  error  of  a  decision  in  favor  of  the  sale ;  the  plaintiff  should 
have  judgment  in  the  court  below.^ 

21  h.  Where,  by  the  terms  of  a  trust  under  a  will,  the  receipt  of  the 
trustees  is  made  a  good  discharge  ;  upon  a  sale  l}y  the  court,  for  the 
purpose  of  dividing  the  proceeds  among  the  beneficiaries,  notwith- 
standing a  practice  among  conveyancers,  of  giving  a  covenant  of  title, 
upon  such  sale,  on  the  part  of  the  beneficiaries,  to  the  extent  of 
their  interest,  no  such  covenant  will  be  required.     The  Court  pro- 


1  Page  V.  Adam,  4  Beav.  269.  •  •'  Hamilton  v.  Buckmaster,  Law  Rep. 

2  Ibid.  (Eng.)  Eq.  March,  18G7,  p.  322. 

15 


226  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    XIII. 

nounce  this  "  an  oppressive  practice."    "  The  beneficiaries  are  not 
contracting  parties,  but  mere  volunteers."  ^ 

21  c.  A  will,  attested  by  two  witnesses,  devised  freeholds  in  Eng- 
land to  A.,  the  son  and  heir  of  the  testator,  for  life,  with  remainder 
to  trustees.  Also,  to  the  trustees,  estates  in  St.  Kitts,  upon  trust 
to  sell,  and  invest  the  proceeds  in  estates  in  England,  to  be  held 
upon  the  same  trusts.  A.  was  in  possession  of  the  English  estate, 
and  received  the  rents  of  the  other,  during  his  life,  which,  with 
his  consent,  the  trustees  endeavored,  though  unsuccessfully,  to  sell. 
A.  having  died  intestate,  leaving  a  minor  heir,  B.,  the  trustees  con- 
tracted to  sell  one  of  the  St.  Kitts  estates,  but  the  purchaser  refused 
to  complete,  on  the  ground  that  the  will  was  then  inoperative. 
Held,  A.  had  elected  to  take  under  the  will,  and  B.  was  bound  by 
his  acts,  and,  under  the  act  of  1850,  was  a  trustee  for  the  claimant 
under  the  will.^ 

22.  Questions  of  title  also  arise  in  reference  to  leasehold  interests 
and  rent8.(a) 

23.  As  to  the  title  or  assurance  of  title  which  the  vendee  of  a 
leasehold  may  demand,  it  is  held,  that,  if  a  contract  be  made  for 
the  sale  of  leasehold  property  unconditionally,  and  not  merely  the 
vendor's  interest  in  the  residue  of  the  term,  and  a  proviso  that  he 
will  not  warrant  his  lessor's  title  ;(5)  in  order  to  enforce  the  con- 
tract he  is  bound  to  show,  to  the  satisfaction  of  the  purchaser,  that 
his  lessor,  or  the  original  grantor  of  the  term,  was  entitled  to  grant 
the  lease. (c)     If  the  vendor  of  a  leasehold  interest  means  to  sell, 

1  Weeds  v.  Bristow,  Law  Eep.  (Eng.)  '^  Dewar     v.    Maitland,     Law     Rep. 

Eq.,  July,  1866,  pp.  32y,  332.  (Eng.)  Eq.  Dec.  1866,  p.  834. 

(a)  ^ee  Leasehold.  agreed  to  purchase  of  Mr.  B.  [the  defend- 
{h)  Whether  tlie  effect  of  advertising  ant]  two  leasehold  houses,  &c.,  Mr.  B. 
for  sale  a  lease  in  possession  is  equivalent  hereby  agrees  to  paper,  &c. ;  Mr.  H.  to 
to  a  declaration  that  the  lessor's  title  can-  pay,  &c.,  at  the  time  of  the  conveyance, 
not  be  produced,  cjucere.  Deverell  v.  Bol-  &c."  Nothing  was  said  in  the  agreement 
ton,  18  Ves.  505.  as  to  making  a  title.  Held,  tlie  agree- 
(c)  And  the  implied  obligation  of  the  ment  to  purchase,  though  recited  as  an 
vendor  may  be  confirmed,  by  an  implica-  existing  agreement,  was  to  be  considered 
tion  in  the  construction  of  the  agreement  as  forming  part  of  tlie  agreement  pro- 
itself.  Thus,  a  declaration  alleged,  tiiat  duced.  Hall  v.  Betty,  4  Mann.  &  Gra. 
it  was  agreed  between  the  plaintiff  and  410.  So  a  contract  for  a  lease  by  a  mort- 
defendant,  that  the  plaintiff  should  pur-  gagor  cannot  be  enforced  by  him,  without 
chase  two  houses  of  the  defendant  for  the  obtaining  a  reconveyance  of  the  mort- 
residue  of  a  term  of  years,  &c. ;  that  tlie  gage,  or  procuring  the  mortgagee  to  con- 
defendant  should  paper  them,  &c. ;  that  firm  the  lease.  But  a  tenant  holding 
the  plaintiff  should  pay  part  of  the  pur-  under  such  contract  cannot  compel  the 
chase-money  on  completion  of  the  convey-  landlord  to  pay  off  the  mortgage,  to  give 
ance  of  the  houses,  and  the  defendant  efiect  to  the  contract.  Costigan  v.  Hast- 
make  a  good  title.  The  agreement  was  ler,  2  Scho.  &  Lef.  160. 
as  follows  :  /'  Mr.  H.  [the  plaintifl']  having 


CHAP.    XIII.]  EEQUISITES    OF   A    VALID    TITLE.  227 

without  producing  his  lessor's  title,  he  ought  to  declare  it.  So, 
though  the  lease  was  originally  granted  by  a  lay  corporation, (a) 
or  is  very  old. ^(5)  So  a  contract  for  the  sale  of  an  existing  and 
a  reversionary  lease  will  not  be  specifically  performed  without  a 
production  of  the  title  of  the  lessors.^  So  where,  on  a  sale  by  auc- 
tion of  leasehold  property,  one  of  the  conditions  was,  that  the 
vendor  "  should  not  be  obliged  to  produce  the  lessor's  title  ;  "  the 
vendee  having  aliunde  discovered  certain  defects  in  the  title,  held, 
notwithstanding  the  condition,  he  was  entitled  to  insist  upon  those 
defects.^  So  a  purchaser  is  not  compellable  to  accept  a  title  to 
leasehold  premises,  formerly  svibject  to  an  incumbrance,  the  dis- 
charge of  which  is  shown  only  by  presumption.  Thus  a  leasehold 
was  sold,  subject  to  a  ground-rent,  which  was  said  to  be  apportioned 
out  of  a  larger  rent,  but  the  apportionment  was  not  evidenced  by 
any  existing  deed,  but  only  by  the  acceptance  of  a  mesne  landlord, 
and  presumption.  Held,  the  purchaser  was  not  bound  to  accept 
the  title.^  So  an  assignee  of  a  lease,  to  show  his  interest  in  the 
premises,  is  bound  to  prove  the  execution  of  the  lease  and  all 
the  mesne  assignments.^  So,  in  an  action  against  a  purchaser  of  a 
leasehold  at  auction  for  not  completing,  the  declaration  averred, 
that  the  vendor  had  delivered  an  abstract  of  title,  pursuant  to  the 
conditions  of  sale,  which  averment  was  traversed  by  the  plea. 
Held,  the  allegation  was  not  sustained,  by  proof  that  the  vendor 
caused  the  lease  and  assignment,  which  composed  the  whole  title, 
to  be  handed  to  the  purchaser  for  perusal,  and  offered  to  send  them 
to  his  attorney,  to  enable  him  to  prepare  the  necessary  assign- 
ment.^(c) 

1  Souter  V.  Drake,  5  B.  &  Atl.  992;  3  Shepherd  w.  Keatley,  1  Cro.  Mees.  & 

Purvis  V.  Rayer,  9   Price,  488;    Hall  v.     Rose.  117. 

Betty,   4   Mann.    &    G.  410 ;    Ogilvie   v.  *  Barnwall  v.  Harris,  1  Taun.  430. 

Foljambe,  13  Meri.  53.  5  Crosby  v.  Percy,  1  Camp.  Ca.  303. 

'^  Deverell  v.  Bolton,  18  Ves.  505.  f>  Home  v.  Wingfield,  3  Scott's  N   C 

340. 

(«)  The  rule   has   been    held  not  to  chase    of   leasehold    property,   described 

apply  to  a  Bishop's  lease.     Fane  v.  Spen-  therein  as  "  a  messuage  lield  for  the  re- 

cer,  2  Meri.  430.  mainder  of  a  term  of  years  under  the 

(b)  But  it  has  been  held,  that,  to  make  Corporation  of  Bath,  and  the  late  R.  A., 
a  good  title  to  the  residue  of  tui  old  term,  at  the  sum,  &c.  ;  "  an  abstract  to  be  made 
mesne  assignments,  which  cannot  be  pro-  out  and  delivered  by  the  vendor,  and  the 
duced,  will  be  presumed,  even  at  law.  assignment  to  be  made  and  prejiared  at 
But  an  old  incumbrance  must  be  attended  the  expense  of  the  i)urchaser,  the  pur- 
to,  unless  it  can  be  presumed  that  it  does  chase-money  to  be  paid  at  or  before  mid- 
not  exist.  White  v.  Foljambe,  11  Ves.  summer.  The  contents  of  two  existing 
337.  deeds  were  not  introduced  in  the  abstract 

(c)  Memorandum  of  an  agreement,  delivered  on  the  24th  of  May ;  though 
dated  the  15th  of  May,  for  sale  and  pur-  they  were  contained  in  an  abstract  delfv- 


228 


LAW   OF   VENDORS   AND   PURCHASERS.  [CHAP.    XIII. 


24.  The  purchaser  of  a  lease,  though  not  so  far  a  purchaser  for 
valuable  consideration,  without  notice,  as  not  to  be  bound  to  know 


ered  on  the  3d  of  September.  Held,  on 
exception  to  the  report  of  the  Master, 
adverse  to  the  title,  that  the  purchaser 
might  abandon  his  contract.  Purvis  v. 
Eayer,  y  Price,  488. 

Property  was  put  up  for  sale  by  auction, 
described  as  "  a  leasehold  ground-rent  of 
^23  reserved  by  a  mesne  lease  of  certain 
premises  for  ninety-eight  years  wanting 
seven  days,  and  assigned  apart  from  the 
reversion  for  the  remainder  of  the  term 
by  an  indenture  of  1817."  By  the  condi- 
tions of  sale,  no  title  prior  to  the  assign- 
ment, nor  the  title  of  any  ground  or  mesne 
landlord,  was  to  be  produced.  From  a 
recital  in  the  deed  of  1817,  it  appeared 
that  the  property  out  of  which  the  rent 
issued  had  been  originally  demised,  with 
other  property,  at  a  rent  of  £10,  subject 
to  the  covenants,  conditions,  and  agree- 
ments in  the  original  demise  contained. 
Held,  that,  under  such  circumstances,  a 
good  title  was  not  made  to  the  rent  of 
£23,  inasmuch  as  it  appeared  upon  the 
face  of  the  deed  of  1817,  that,  upon  failure 
of  payment  of  the  £10  rent,  the  rent  of 
£23  might  be  liable  to  diminution  or  for- 
feiture. Taylor  v.  Martindale,  1  You.  & 
Coll.  658. 

Bill  by  a  vendor  for  specific  perform- 
ance of  an  agreement  to  take  a  lease  for 
twenty-one  years  at  rack-rent.  The  Mas- 
ter reported  in  favor  of  the  title  shown  by 
the  abstract,  but  exception  was  taken  to 
the  report.  Held,  in  the  absence  of  an 
express  agreement,  such  vendor  is  bound 
to  produce  the  title  of  his  lessor.  The 
principle  was  laid  down,  that  whether 
the  interest  contracted  for  be  freehold  or 
leasehold,  for  a  long  term  of  years,  or  a 
short  lease  at  rack-rent,  the  party  who 
comes  for  specific  performance  should  be 
prepared  to  show,  that  he  is  able  to  give 
what  he  seeks  to  compel  the  other  to 
take.  It  was  questioned  whether  the  rule 
applies,  where  the  length  of  possession 
under  the  original  lease  has  been  sufficient 
to  raise  a  presumption  of  title.  Fildes  v. 
Hooker,  2  Mer.  424. 

Declaration  in  assumpsit,  that  the 
plaintiff  put  up  leasehold  premises  at 
auction,  subject  to  conditions  that  the 
purchaser  should  complete  the  purchase 
by  a  certain  day,  and  the  plaintiff  deduce 
a  good  title,  commencing  with  the  lease 
under  which  they  were  then  held.  Breach, 
that,  although  the  plaintiff  did  deduce  a 
good  title,  commencing  with  the  lease, 
the  defendant  did  not  complete  the  pur- 
chase according  to  contract.  Plea,  that 
the  premises  were,  on,  &c.,  demised  by 


T.  L.  to  W.  B.  for  a  term  still  subsisting, 
subject  to  a  covenant  by  W.  B.  to  keep 
the  premises  in  repair,  and  for  re-entry 
by  T.  L.  in  default  tliereof ;  that  the  in- 
terest of  W.  B.  vested  by  assignment  in 
the  plaintiff,  and  that  tlie  plaintiff,  after 
the  assignment,  suffered  the  premises  to 
be  out  of  repair,  and  they  continued  so  iip 
to  the  time  of  sale,  so  that  the  term  might 
at  the  option  of  T.  L.  be  determined  ;  and 
that  the  plaintiff,  by  reason  of  the  prem- 
ises, had  not,  at  the  time  of  the  sale  or  at 
any  time  afterwards,  any  good  and  valid 
title  to  the  premises,  and  did  not  deduce 
or  make  a  good  title  to  the  defendant.  On 
special  demurrer  to  these  pleas,  the  former 
was  held  bad,  as  being  an  argumentative 
denial  of  the  allegation  in  the  declaration, 
that  the  plaintiff  made  a  good  title  ;  and 
the  latter,  on  the  ground  tliat,  if  the  de- 
fendant meant  to  object  to  the  validity  of 
the  lease,  he  ought  to  have  confessed  the 
allegation  of  title  in  the  declaration  as  it 
stood,  and  then  to  have  pointed  the  plea 
specifically  to  the  objection  that  the  lessor 
had  not  title.  Wheeler  v.  Wright,  7  Mees. 
&  W.  359. 

Plaintiff  put  up  to  sale  by  auction  a 
lease  of  premises,  which  he  occupied  as 
assignee  of  the  lease,  stipulating  not  to 
produce  any  title  prior  to  the  lease.  In 
an  action  against  a  purchaser  for  not  com- 
pleting his  purchase,  the  plaintiff  declared 
that  he  was  possessed  of  the  lease.  Held, 
the  defendant  having  rejected  the  abstract, 
that  the  plaintiff  was  bound  to  prove  the 
execution  of  the  lease  by  the  attesting 
witness,  and  that  it  was  not  sufficient  to 
prove  the  assignment  to  himself.  Lay- 
thoarp  V.  Bryant,  1  Bing.  N.C.  421. 

A.  had  purcliased  at  auction  an  under- 
lessee's  interest  in  a  house,  and  refused  to 
pay  a  check  given  for  the  deposit,  because 
the  ground-rent,  payable  to  the  superior 
landlord,  was  greater  than  it  was  stated 
to  be  at  the  sale.  Held,  the  superior  land- 
lord's solicitor  Mas  not  compellable  to  pro- 
duce the  counterpart  of  the  original  lease, 
nor  could  a  person  who  had  advanced 
money  on  that  lease,  and  held  it  as  equi- 
table mortgagee,  be  compelled  to  produce 
the  lease  itself;  but  if  both  these,  on  being 
called  as  witnesses,  refused  to  produce  the 
lease  and  counterpart,  secondary  evidence 
might  be  given  of  the  contents  of  the 
lease  by  calling  any  person  who  had  seen 
it,  and  who  neither  claimed  under  it  as  one 
of  his  own  title-deeds,  nor  was  privileged 
as  an  attorney  or  solicitor.  Mills  v.  Oddy, 
G  Car.  &  P.  728. 

A.,  having  sold  certain  leasehold  prem- 


CHAP.    XIII.] 


REQUISITES   OP   A   VALID    TITLE. 


229 


from  whom  the  lessor  derived  his  title,  is  not  bound  to  take  notice 
of  all  the  circumstances  under  which  it  is  derived.     Therefore,  he 


ises  to  B.,  assigned  them  by  indenture, 
containing  a  proviso  tiiat  B.  should  not 
assign  over,  until  the  wliole  of  the  i)ur- 
cliase-money  should  have  been  paid  ;  and 
B.  and  C.  covenanted  for  themselves, 
tlieir  executors,  administrators,  and  as- 
signs, for  the  payment  of  the  money.  The 
premises,  having  been  taken  in  execution 
for  a  debt  of  B.,  who  had  not  paid  tlie 
purchase-money,  were  sold  by  the  sheritf 
to  D.,  who  paid  down  a  deposit,  and  agreed 
to  complete  the  purchase  on  having  a  good 
title.  Held,  the  non-payment  of  the  pur- 
chase-money  bj'B.  was  a  sufficient  objec- 
tion to  the  title,  and  D.  might  recover 
back  his  deposit  in  an  action  for  money 
had  and  received.  Elliot  v.  Edwards,  3 
Bos.  &  Pull.  181. 

Declaration  for  not  completing  the 
purchase  of  a  term  of  years,  of  which 
the  plaintiff  was  lessee.  Plea,  that  the 
plaintiff  did  not  adduce  a  good  title.  The 
plaintiff's  lease  contained  a  covenant,  to 
insure  and  keep  insured  the  premises 
during  the  term,  with  a  proviso  of  forfeit- 
ure and  re-entry  by  the  lessor  for  breach 
of  covenant.  The  plaintiff  had  insured, 
but  had  not  paid  the  last  premium  pre- 
vious to  his  agreement  with  the  defendant, 
until  a  month  after  it  was  due.  Held, 
the  plaintiff  had  incurred  a  forfeiture, 
which  the  lessor  could  still  enforce,  not- 
withstanding the  subsequent  payment  and 
acceptance  by  the  insurance  office  of  the 
premium ;  and  the  defendant  had  there- 
fore a  good  defence.  Wilson  v.  Wilson, 
25  Eng.  Law  &  Eq.  392. 

Premises  sold  at  auction  were  described 
in  the  particulars  as  being  customary  lease- 
holds, renewable  every  twenty-one  years, 
at  the  customary  rent  of  10s.,  on  paj-ment 
of  the  customary  fine.  The  fourth  condi- 
tion of  sale,  after  fixing  a  time  for  the 
delivery  of  the  abstract  and  objections  to 
the  title,  stipulated,  that,  if  there  were  any 
objection,  which  the  vendor  should  be 
unable  or  unwilling  to  remove,  he  might 
vacate  the  sale  on  repayment  of  the  de- 
posit-money, without  interest  or  costs. 
The  fifth  condition  stipulated,  that  the 
production  of  the  lease  by  the  vendor 
should  be  accepted  as  sufficient  evidence 
of  the  lessor's  title.  The  sixth  condition 
stipulated,  that  errors  of  description,  or 
any  errors  inserted  in  the  particulars, 
should  not  vacate  the  sale,  but  should  be 
the  subject  of  abatement  or  compensation. 
It  turned  out  on  the  investigation  of  the 
title,  what  was  previouslj'  unknown  to  all 
the  parties  interested,  that  there- was  no 
custom  to  renew,  but  that  the  premises 


were  held  for  an  absolute  term  of  twenty- 
one  years.  Helil,  the  fact  of  the  ]m)perty 
being  sold  as  leaseholds  renewable  by 
custom,  when  there  was  no  such  custom, 
was  an  error  of  description,  not  a  defect 
of  title.  Newbv  v.  Paynter,  19  Eng.  Law 
&  Eq.  68. 

Also,  that  the  purchaser  was,  under  the 
sixth  conchtion,  entitled  to  specific  per- 
formance, with  a  deduction  from  the  i)rice. 
Ibid. 

Declaration,  that  the  defendant  caused 
to  be  put  up  to  sale  by  auction  cei'tain 
premises,  for  the  residue  of  a  term  of 
j^ears,  on  the  condition,  among  others, 
that  the  defendant  should  deduce  and 
make  a  good  title  thereto,  commencing 
with  the  lease  under  which  they  were 
then  held.  Breach,  that  the  defendant 
did  not  deduce  a  good  title  commencing 
with  the  lease.  Plea,  that  the  premises 
were  premises  of  which  the  defendant  was 
possessed  under  a  mortgage  from  the 
plaintiff,  for  the  residue  of  the  term,  and 
were  put  up  to  sale  under  a  power  of  sale 
in  the  mortgage ;  that,  before  and  at  the 
time  of  the  mortgage,  the  plaintiff  held 
the  premises  under  a  lease  from  A.,  sub- 
ject to  a  covenant  by  the  phiintifi'  for 
repair,  and  a  proviso  for  re-entry,  or  the 
cesser  of  the  term,  at  the  option  of  A.  on 
breach  of  such  covenant ;  that  the  plaintiff, 
before  and  at  the  time  of  the  sale,  had  full 
knowledge  of  all  the  premises ;  that  the 
defendant  did  deduce  a  good  title,  com- 
mencing with  the  lease,  in  all  respects 
except  this,  that  the  premises  were  out 
of  repair,  of  which  the  plaintiff  had  full 
knowledge  ;  that  they  were  at  the  time  of 
the  sale  in  as  good  repair  as  at  the  time 
of  the  mortgage  ;  and  that  A.  had  not 
re-entered  or  claimed  to  re-enter,  or  in  any 
way  avoided  the  lease.  Held  bad,  on 
general  demurrer.  Barnett  v.  Wheeler, 
5  M.  &  W.  3G1. 

A  railway  company  served  a  land- 
owner with  a  notice  to  treat  for  the  pur- 
chase of  a  portion  of  his  land.  The 
land-owner,  in  the  particulars  of  his  claim, 
stated  that  he  was  seised  in  fee-simple, 
subject  to  an  unexpired  term,  and  a  re- 
served rent,  and  that  he  claimed  .£1,500 
for  his  interest ;  which  the  company  agreed 
to  pay.  An  abstract  of  title  was  then  de- 
livered to  the  solicitor  of  the  companj^ 
who  was  also  informed  that  the  rent  was 
payable  in  respect  of  other  land  belonging 
to  the  plaintiff,  as  well  as  of  that  required 
by  the  company,  and  that  it  must  be  ap- 
portioned. The  company  claimed  the 
whole  rent,  and  refused  to  complete  their 


230 


LAW    OP   VENDORS   AND    PURCHASERS.  [CHAP.    XIII. 


is  charged  with  notice  that  the  lessors  were  trustees  for  a  charity, 
but  not  that  the  lease  was  bad ;  that  depending  on  circumstances 
dehors} 

25.  But  the  general  rule,  as  to  requiring  production  of  the  les- 
sor's title,  does  not  apply,  where  the  terms  of  the  advertisement, 
l^roposal,  or  agreement  plainly  negative  such  an  obligation. (a) 
Thus  A.  agreed  to  sell  to  B.  the  two  leases  and  good-will  in  trade 
of  a  public  house,  and  shop  adjoining,  for  £4,250,  "  as  he  holds  the 
same,"  for  terms  of  twenty-eight  years  from  midsummer  next  en- 
suing, at  the  annual  rent  therein  mentioned ;  and  B.  agreed  to 
accept  a  proper  assignment  of  the  said  leases  and  premises  as 
above  described,  without  requiring  the  lessor's  title  ;  and,  upon 
payment  of  said  sum,  A.  agreed  to  execute  an  effectual  assignment 


1  Attorney-General  v.  Backhouse,   17  Ves.  283. 


contract  on  any  other  terms.  On  a  bill 
filed  by  tlie  land-owner  against  the  com- 
pany, tlie  Court  decreed  specific  perform- 
ance. Inge  V.  Birmingham,  &c.  23  Eng. 
Law  &  Eq.  601. 

Bill  for  specific  performance  of  an 
agreement  to  take  a  sub-lease.  The 
question  was,  whether  the  defendant  was 
entitled  to  call  for  tlie  production  of  the 
plaintiff's  title,  or  wliether,  if  he  had  had 
that  right,  lie  had  not  waived  it  by  his 
conduct.  Lord  Cranwortli  says  :  "  Priind 
facie,  every  person  contracting  for  a  lease 
is  entitled  to  call  for  the  title  of  the  lessor. 
There  may  be  a  technical  difference  be- 
tween the  case  of  the  lessor  being  the 
owner  of  the  fee-simple  and  where  he  is 
but  a  lessee  himself;  in  the  one  case  the 
inquiry  as  to  title  is  frequently  dispensed 
with  ;  in  the  other,  seldom.  I  should  liave 
thought  the  mere  taking  possession  not 
important ;  but  the  question  is,  whether 
the  conduct  of  the  defendant  was  not  in- 
consistent with  calling  for  tlie  title.  It  is 
to  be  observed  that  part  of  the  contract 
was,  that  the  fixtures  were  to  be  paid  for 
by  Sadd  at  a  valuation,  and  he  concurred 
in  tlie  nomination  of  the  agent  who  was 
to  make  the  valuation.  Now,  tliat  was 
very  unlike  insisting  upon  his  right  to 
call  for  the  inspection  of  the  title,  for  the 
valuation  was  an  expense  wliicli  he  would 
not  have  had  to  incur  until  he  had  become 
the  lessee.  On  the  8th  of  December,  he, 
wishing  to  get  rid  of  his  contract,  adver- 
tised for  a  purchaser  of  his  interest,  he 
having  previously  written,  on  the  25th  of 
November,  to  the  solicitors  of  the  plaintiff, 
requesting  them  'to  defer  tlie  preparation 
of  die  leases,  &c.,  as  I  have  a  i)rospect  of 


finding  a  partner  in  that  matter,  who, 
I  think,  should  be  included  therein.'  I 
tliink  that  was  very  strong  to  show  he 
had  waived  all  right  to  call  for  the  title." 
The  Lord  Chancellor  proceeds  to  mention 
other  circumstances,  indicating  a  waiver 
of  the  party's  right  to  object  to  the  title, 
such  as  examining  without  objection  a 
draft  of  the  lease,  &c. ;  adding,  "  Upon  the 
whole,  I  consider  the  result  irresistible 
that  the  defendant  never  meant  to  ask  for 
the  production  of  the  title  ;  but,  as  a  mat- 
ter of  form,  I  think  the  language  of  the 
decree  is  wrong  in  saying  that  the  defend- 
ant had  accepted  the  title.  I  think,  also, 
with  Alexander,  C.B.,  in  "Warren  v.  Rich- 
ardson, 1  Younge,  1,  that  this  is  a  matter, 
not  of  form  merely,  but  of  substance  ;  for 
suppose  that  the  plaintiff  could  not  execute 
proper  leases  ?  I  think,  therefore,  that 
the  language  sliould  be,  as  in  Warren  v. 
Richardson,  that  the  defendant  had  waived 
his  right  to  call  for  the  title  of  the  plain- 
tiff." Simpson  v.  Sadd,  31  Eng.  Law  & 
Eq.  385. 

(a)  Even  where  the  sale  is  a. general  one, 
the  same  doctrine  has  been  sometimes 
held.  Thus  in  an  action  by  the  vendee 
against  the  vendor  of  a  lease,  for  the  de- 
posit, it  was  held,  that  the  vendor  is  not 
bound  to  produce  his  lessor's  title,  with- 
out an  express  stipulation  to  that  effect. 
George  v.  Pritchard,  1  Mood.  &  Ry.  417. 
So  it  has  been  suggested,  that  the  owner  of 
land,  agreeing  to  grant  a  lease,  does  not 
thereby  impliedly  engage  that  he  has  a 
good  title  in  fee,  and  will  deliver  a  writ- 
ten abstract.  Temple  v.  Brown,  6  Taunt. 
60. 


CHAP.    XIII.]  REQUISITES    OF   A   VALID    TITLE.  231 

of  the  said  leases,  and  deliver  up  possession  of  all  the  said  premises. 
Held,  the  vendee  was  to  purchase  without  inquiring  into  the  title 
of  the  lessor,  and  could  not  refuse  to  complete  his  purchase  on 
account  of  an  objection  to  that  title.^  So  even  the  liability  of  the 
purchaser  for  the  future  default  of  a  third  person,  in  consequence 
of  the  terms  of  the  lease  sold,  has  been  held  not  to  atfect  the  valid- 
ity of  the  sale.  Thus  two  houses,  held  under  one  lease,  were  sold 
separately  to  A.  and  B.  The  lease  was  produced,  and  inspected 
at  the  sale  by  the  purchasers'  solicitors.  The  conditions  of  sale 
provided  for  the  apportionment  of  the  rent  between  the  two  pur- 
chasers, but  did  not  notice  covenants  to  insure,  &c.,  and  a  proviso 
for  re-entry  on  non-performance,  contained  in  the  lease.  Held, 
though  A.  might  be  evicted  by  the  default  of  B.,  still  he  was  bound 
to  complete.^  So  on  a  sale  in  lots  of  premises,  the  particulars  of 
which  state  them  to  be  held  under  one  lease  reserving  rent,  and 
that  the  purchaser  of  one  lot  is  to  be  exclusively  subject  to  the 
rent ;  the  other  purchasers  cannot  object  to  the  title,  on  the  ground 
of  a  clause  of  re-entry  or  non-payment,  contained  in  the  lease.^ 

26.  While  the  production  of  title  may  be  dispensed  with  by  the 
special  terms  of  the  sale  itself;  it  may  also  be  impliedly  loaived  by 
the  purchaser.  Such  implication,  however,  must  be  clearly  estab- 
lished, in  order  to  prevail  over  the  general  rule  of  law.  Thus, 
where  a  lessee  in  possession  contracted  to  sell  the  residue  of  his 
term,  being  three  years  and  a  quarter,  at  the  rent  of  £42  per 
annum,  the  vendee  paying  X30  for  the  fixtures,  as  per  list ;  held, 
it  was  not  to  be  inferred,  from  the  short  residue  of  the  term,  the 
small  value  of  the  property,  and  the  absence  of  any  premium  for 
the  lease,  that  the  vendee  intended  to  waive  his  right  to  call  for 
the  production  of  the  lessor's  title.'^  So  the  objection  to  the  title 
is  not  waived  by  a  premature  conditional  approbation  of  it  by  the 
purchaser's  counsel ;  but  the  expense  of  making  out  the  title,  before 
this  objection  was  taken,  shall  be  repaid.^ 

27.  In  a  suit  for  specific  performance  of  an  agreement  to  accept 
a  lease,  the  Court,  considering  the  defendant  (the  intended  lessee) 
by  his  conduct  to  have  waived  all  objections  to  the  vendor's  title, 
decreed  a  specific  performance,  and  referred  it  to  the  Master  to 


1  Spratt  V.  Jeffery,  10  Barn.  &  Cress.         *  Senter  v.  Drake,  5  Barn,  and  Adol. 
249.  992. 

2  Paterson  ?'.  Loner,  6  Beav.  o'.iO.  5  Deverell  v.  Bolton,  18  Ves.  505. 

3  Walter  v.  Maunde,  1  Jac.  &  Walk.  181.  * 


232  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.   XIII. 

settle  the  lease.  In  settling  the  lease,  it  became  necessary,  for 
identifying  the  premises,  to  produce  before  the  Master  the  original 
lease,  under  which  the  plaintiff  was  entitled  to  the  property,  and 
from  which  lease  it  appeared  that  the  property  in  question  was 
held  with  other  property  at  one  entire  rent,  and  under  some  spe- 
cial covenants,  no  provision  with  respect  to  which  was  made  in  the 
agreement  between  the  plaintiff  and  the  defendant.  On  the  hear- 
ing for  further  directions,  these  facts  being  brought  before  the 
Court  by  exceptions  to  the  report ;  held,  though  the  defendant  had 
by  his  conduct  waived  his  right  to  the  production  of  the  lessor's 
title,  yet  as,  in  the  course  of  the  proceedings,  it  had  become  neces- 
sary to  produce  that  title,  and  that  production  showed  that  a  suf- 
ficient lease  could  not  be  made,  according  to  agreement,  the  Court 
would  not  enforce  a  specific  performance  ;  and  the  bill  was  dis- 
missed, but  without  costs.^  But  where  the  purchaser  of  the  benefit 
of  an  agreement  for  the  lease  of  a  public  house,  and  also  of  the 
stock  and  good-will,  enters  before  the  lease  has  been  granted,  pays 
part  of  .the  purchase-money,  and  mortgages  his  interest;  he  cannot 
call  for  the  lessor's  title,  or  for  evidence  that  the  lease  was  made 
in  conformity  with  the  power  under  which  it  was  granted. ^ 

27  a.  If  there  be  a  covenant  for  title,  clear  of  incumbrances, 
where  there  are  unextinguished  ground-rents,  it  is  error  to  instruct 
the  jury  that  the  defect  may  be  compensated  by  a  deduction  from 
the  purchase-money .2 

28.  In  reference  to  the  title  of  leasehold  property,  questions 
often  arise  upon  the  necessity  and  effect  of  covenants  for  the  pro- 
tection and  benefit  of  the  lessee  or  purchaser.  Thus,  in  addition 
to  the  rule  above  stated,  as  to  the  implied  obligation  in  the  sale  of 
leasehold  estates  to  give  a  good  title  to  the  purchaser,  an  agree- 
ment for  a  lease  often  stipulates  for  the  insertion  in  such  lease  of 
the  usual  covenants.'^  What  covenants  fall  under  this  description, 
depends  upon  various  circumstances,  such  as  local  custom,  or  the 
nature  of  the  property  ;  but  it  is  always  a  question  of  fact  for  the 
jury.  It  has  been  held,  that  a  lessee  is  not  impliedly  bound  to 
covenant  that  he  will  not  carry  on  a  particular  trade  or  business 
on  the  premises  ;  nor  assign  nor  underlet  without  license  ;  nor 
that  he  will  keep  the  premises  insured,  or  pay  the  taxes.  Nor  is 
the  lessor  impliedly  bound  to  covenant  that  he  will  rebuild  in  case 

1  Warren  v.  Richardson,  You.  1.  ^  Gans  v.  Eenshaw,  2  Barr,  34. 

2  Haydon  v.  Bell,  1  Beav.  337.  *  See  Sargent  v.  Adams,  3  Gray,  81. 


CHAP.    XIII.]  REQUISITES    OF   A   VALID    TITLE.  233 

of  fire,  and  that  the  rent  shall  cease  if  he  does  not.  But  it  seems 
he  is  bound  to  covenant  for  the  lessee's  quiet  enjoyment,  as  against 
the  lessor  or  those  claiming  under  him.^(a)  So  covenants  made 
for  the  benefit  of  the  lessor  may  come  in  question  upon  a  sale  of  the 
lessee's  interest.  Thus  a  lessee,  subject  to  covenants,  cannot  com- 
pel specific  performance  of  an  agreement  to  purchase  the  premises, 
though  he  ofier  to  indemnify  the  purchaser  against  the  perform- 
ance of  the  covenants.2  So  if  the  vendor  of  a  lease,  in  which  is  a 
covenant  not  to  assign,  contract  to  assign  his  interest,  it  is  incum- 
bent on  him,  and  not  on  the  purchaser,  to  procure  tlie  lessor's 
license  for  the  assignment.'^(6) 

29.  Title  sometimes  depends  upon,  or  is  impaired  by,  legal  jJro- 
cess,(c)  more  Q&\)QQ\di\\j  judgments,  as  constituting  a  lien  upon  land 
sold.  Thus,  in  1846,  the  plaintiff,  a  mortgagee  with  power  of  sale, 
under  a  mortgage  dated  in  January,  1844,  contracted  to  sell  the 
premises  to  the  defendant.  At  the  date  of  the  contract,  the  prem- 
ises were  subject  to  two  judgments,  registered  against  the  mort- 
gagor in  1843  ;  but  it  appeared  that,  on  taking  his  mortgage,  the 
plaintiff  also  took  an  assignment  to  a  trustee  for  himself  of  the 
residue  of  a  term  of  one  thousand  years,  created  in  1818  ;  and  it 

1  Church  V.  Brown,  15  Ves.  258  ;  Ben-         2  Tildes  v.  Hooker,  3  Madd.  193. 
nett  V.  Woniack,  7  B.  &  C.  627 ;  Doe  v.         3  Lloyd  v.  Crispe,  5  Taunt.  249. 
Sandhara,  1  T.  K.  705 ;   Van  v.  Corp,  3 
My.  &  K.  269.  " 

(a)  Contract  for  an  assignment  of  a  lease  in  1843.     Up  to  that  time  the  rent  was 

of  a  public  house,  which  was  described  as  paid  regularly,  but  the  covenants  to  repair 

liolden  at  a  certain  net  rent,  upon  usual  and  and   insui-e   wei'e   neglecteil.      Upon   the 

common  covenants.     The  lease  contained  a  decease  of  the  lessee,  disputes  arose  in  the 

covenant  by  the  tenant,  to  pay  land-tax.  Ecclesiastical  Court  as  to  the  right  to  rep- 

sewers-rate,  and  all  other  taxes,  and   a  resentation  to  his  estate,  and  probate  was 

proviso  for  re-entry,  if  any  business  but  not   granted   until   1847.      During   these 

that  of  a  victualler  should  be  carried  on  in  four  years  the  rent  was  in  arrear,  and  the 

the  house.     It  was  proved  that  a  consid-  covenants  to  insure  and  repair  were  totally 

erable  majority  of  public-house  leases  con-  neglected.    The  lessor  threatened  to  bring 

tained  such  a  proviso.     Held,  the  cove-  ejectment.     Held,  on  a  bill  brought  to  re- 

nant   was    a    common    one    in    a    lease  strain  the  ejectment,  and  to  have  a  specific 

reserving  a  net  rent ;  and  the  proviso  was  performance  of  the  agreement,  inasnmch 

also  usual  and  common.     Bennett  v.  Wo-  as  the  lessor,  if  the  lease  had  been  formally 

mack,  7  B.  &  C.  627.  executed  in  1814,  would  now  have  had  a 

{h)  A.  agreed,  in  1814,  for  a  lease  of  right  to  determine  it  by  breach  of  cove- 
building-ground  for  seventy -five  years,  at  nant,  the  Court  would  not  decree  specific 
a  ground-rent,  containing  the  usual  build-  performance  ;  and  that  the  disputes  in  the 
ing-covenants  to  insure,  repair,  allow  les-  ecclesiastical  courts  did  not  afford  suffi- 
sors  to  enter  and  view  repairs,  &c. ;  and  cient  ground  for  relief.  Gregory  v.  Wilson, 
that  in  case  of  non-payment  of  rent,  or  10  Eng.  Law  &  Eq.  133. 
breach  of  any  covenant,  the  lessor  was  to  (t)  It  is  no  objection  to  a  title,  that  the 
have  the  right  to  re-enter.  The  lease  was  vendor  had  notice  of  a  Us  pendens  concern- 
never  executed,  but  the  tenant  entered,  ing  it,  without  proof  of  the  claim  asserted  ; 
and  built,  at  considerable  expense,  and  the  action  liaving  been  compromised  and 
continued  in  possession  up  to  his  decease  settled.     Wilsey  v.  Dennis,  44  Barb.  354. 


234  LAW   OP   VENDORS    AND    PURCHASERS.  [CHAP.    XIII. 

was  denied  by  the  plaintiff  that,  at  the  date  of  the  mortgage,  he 
had  notice  of  the  judgments.  The  defendant,  who  had  been  let 
into  possession,  having  refused  to  pay  the  purchase-money,  the 
suit  was  instituted  for  specific  performance.  Shortly  afterwards, 
the  five  years  from  the  date  of  the  registration  of  the  judgments 
terminated,  without  a  registration  of  such  judgments  having  been 
made,  pursuant  to  Statute  2  Vict.  ch.  11,  §  4  ;  and  afterwards, 
pending  the  suit,  one  only  of  such  judgments  was  re-registered. 
Held,  the  purchaser  could  not  be  forced  to  take  a  conveyance, 
except  upon  the  terms,  either  of  the  concurrence  therein  of  the 
judgment  creditor  who  had  re-registered,  and  of  the  other  in  case 
he  should  re-register,  or  of  a  release  or  exoneration  of  the  premises 
from  the  judgments. ^ 

30.  But  in  case  of  conveyance  by  a  debtor  to  trustees,  his 
creditors,  in  trust  to  soil,  and  pay  themselves,  and  the  surplus  pro- 
ceeds to  the  debtor  ;  and  to  convey  to  him  the  lands  remaining 
unsold ;  the  receipt  of  the  trustees  to  be  a  sufficient  discharge  to  a 
purchaser ;  with  covenants  for  repayment  of  the  money  by  a  cer- 
tain day,  for  good  title  and  quiet  enjoyment :  on  a  sale  under  a 
decree  to  execute  the  trusts ;  held,  that  judgments  confessed  by 
the  debtor  subsequent  to  the  deed,  and  still  outstanding,  were  not 
objections  to  the  title,^  So  an  outstanding  docketed  judgment,  not 
registered  pursuant  to  the  provisions  of  the  Statutes  1  &  2  Vict, 
ch.  110,  §  19,  and  2  &  3  Vict.  ch.  11,  §§  2  and  3,  is  not  a  valid 
objection  to  the  title  of  a  vendor  on  the  sale  of  realty.^ 

31.  The  decree  of  title  in  one  State,  to  lands  in  another,  cannot 
vest  the  legal  title.^ 

32.  On  reference  of  title,  in  a  suit  by  a  vendor  for  specific  per- 
formance, a  subsequent  suit  still  pending  for  part  of  the  lands, 
claimed  adversely  to  the  vendor,  is  not  sufficient  ground  for  re- 
porting against  the  title.^ 

33.  A  contract  to  convey,  so  soon  as  a  suit  then  pending  for  the 
title  shall  be  decided,  gives  the  vendor  all  the  time  necessary  to 
close  the  litigation  in  all  its  forms. ^ 

33  a.  Title  hy  foreclosure,  where  the  owner  was  not  party  to  the 
suit,  is  bad.'^ 

1  Freer  v.  Hesse,  21  Eng.  Law  &  Eq.         *  Watts  v.  Waddle,  1  McL.  200. 

82.  ^  Osbaldeston  v.  Askew,  1  Russ.  160. 

2  Alexander  v.  Crosbie,  6  Ir.  Eq.  Rep.         «  Watts  v.  Waddle,  1  McL.  200. 

513.  '7  Jouglians    v.    M'Cormick,    18    Cal. 

3  Bedford  v.  Forbes,  1  Carr.  &  K.  33.       660. 


CHAP.    XIII.]  REQUISITES    OF   A   VALID    TITLE.  235 

34.  All  act  of  hankniptcy  is  a  sufficient  objection  to  title,  without 
showing  a  debt,  upon  wliich  a  commission  could  issue.^  So  an 
act  of  bankruptcy  and  a  docket  struck,  though  no  commission 
issued,  are  a  sufficient  objection  to  a  bill  for  spccilic  performance 
of  a  previous  contract  for  the  sale  of  an  estate  to  the  plaintiff;  in 
a  case  even  where  part  of  the  money  had  been  paid,  and  sub-con- 
tracts for  sale  of  part  entered  into  by  the  plaintiff;  and  the  defend- 
ants had  agreed  to  convey  accordingly .^(a)  So  a  devisee,  subject 
to  debts  and  legacies,  contracted  to  sell  in  order  to  raise  money  to 
pay  the  debts.  Afterwards  a  bill  was  filed  against  her,  by  the 
legatees  for  the  administration  of  the  testator's  estates,  and  the 
purchaser  consented  to  go  before  the  Master  upon  a  reference  as 
to  title  in  that  suit.  Hold,  he  was  not  thereby  bound  to  take  an 
equitable  title,  but  might  insist  on  having  the  same  title  as  he 
might  have  required  if  a  suit  had  been  instituted  against  him  for 
specific  performance.  And,  as  two  commissions  of  bankrupt  had 
issued  against  the  devisee,  before  the  contract  was  entered  into, 
though  neither  of  them  was  proceeded  in,  he  was  not  bound  to 
accept  the  title.^  But,  in  another  case,  lands  were  settled  on  A. 
for  life,  remainder  to  his  wife  for  life,  remainder  to  their  children, 
with  a  power  of  revocation  and  appointment  to  new  uses  by  the 
husband  and  wife  jointly ;  but  if  A.  should  become  bankrupt,  &c., 
the  limitation  to  him  for  life  should  cease,  and  the  lands  should 
go  to  trustees  during  his  life,  for  the  benefit  of  his  wife  and  chil- 
dren. A.  agreed  for  the  sale  of  this  estate,  and  proposed  to  make 
title  to  the  purchaser  by  executing  tliis  power  of  revocation.  The 
conveyance  on  the  part  of  the  purchaser  required  an  indemnity 
against  A.'s  having  committed  any  secret  acts  of  bankruptcy,  for 
that  the  power  of  revocation  would  be  extinguished  by  the  forfeit- 
ure of  the  life  interest  of  A.  On  a  bill  filed  by  A.  to  compel  per- 
formance, held,  there  was  no  ground  for  the  objection,  and  the 
mistaken  opinion  of  the  conveyancer  could  not  save  the  defendant 
from  costs.* 

34  a.  In  the  case  of  Frewe  v.  Wright,^  where  assignees  of  a  bank- 

1  Lowes  V.  Lusli,  14  Ves.  547.  ^  Maling  v.  Hill,  1  Cox,  186. 

2  Franklin  v.  Brownlow,  14  Ves.  550.  5  4  Madd.  364. 

3  Cann  v.  Cann,  1  Sim.  &  Stu.  284. 

(a)  Upon  an  exchange  of  land,  it  is  no  vent,  with  the  warranty  of  a  solvent  per- 

objection  to  a  specific  execution,  that  one  son  as  security.     Tyree   v.   Williams,   3 

of  the  parties  has  become  insolvent,  if  the  Bibb,  366. 
Court  decree  a  conveyance  from  the  insol- 


236  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    XIII. 

rupt  had  stipulated  that  such  title  only  as  the  bankrupt  had  should 
be  required  by  the  purchasers  ;  Sir  W.  Page  Wood,  V.C.,  remarks, 
that  it  was  "  thought  a  stretch  of  the  jurisdiction  of  the  Court  to 
force  the  title  on  a  purchaser.  The  principles  on  which  such  sales  " 
(by  order  of  Court)  "  are  conducted  ought  not  to  be  more  lax  as  to 
the  complete  bona  fides  required  than  those  which  are  held  to  gov- 
ern in  other  cases."  ^ 

35.  In  some  cases,  a  legal  title  may  be  presumed ;  and,  in  mat- 
ters of  presumption,  the  Court  will  bind  a  purchaser,  where  it 
would  give  a  clear  direction  to  a  jury.^  Thus  a  reconveyance  of 
the  legal  estate  was  presumed  under  obscure  circumstances,  after 
a  great  lapse  of  time,  though  the  possession  was  originally  not 
adverse,  but  under  a  trust ;  and,  upon  this  presumption,  specific 
performance  was  decreed  against  a  purchaser.^  So  a  term  was 
created  in  1711  for  raising  portions.  There  was  no  evidence  of 
the  portions  being  satisfied  ;  but  a  settlement  of  the  estate  took 
place  in  1744,  and  a  recovery  was  suffered  ;  and  there  was  a 
covenant  that  the  estate  was  free  from  incumbrances.  No  assign- 
ment appeared  to  have  been  made  at  any  time  of  the  term.  On 
an  objection  to  the  title  by  a  purchaser,  held,  that  a  surrender  of 
the  term  must  be  presumed.*  So  it  was  held  to  be  no  objection 
to  a  title,  that  two  fee  farm-rents,  created  by  letters-patent  by 
James  I.,  were  not  shown  to  have  been  extinguished  ;  it  being 
proved  that  no  claim  had  been  made  by  the  Crown  of  the  rents 
from  the  year  1706,  and  there  being  no  proof  of  any  previous  claim.^ 

36.  But  it  has  been  held,  that  a  purchaser  is  not  compellable  to 
accept  a  title  to  premises  formerly  subject  to  an  incumbrance,  the 
discharge  of  which  is  shown  only  by  presumption.  Thus  a  lease- 
hold was  sold,  subject  to  a  ground-rent,  which  was  said  to  be 
apportioned  out  of  a  larger  rent ;  but  the  apportionment  was  not 
evidenced  by  any  existing  deed,  but  only  by  the  acceptance  of  a 
mesne  landlord,  and  presumption.  Held,  that  the  purchaser  was 
not  bound  to  accept  the  title.^ 

37.  A  title  may  be  gained  by  lapse  of  time  or  limitation,  as  well 
as  by  direct  transfer  or  alienation.  Thus  it  has  been  held,  that 
sixty  years'  possession  is  an  unobjectionable  title  to  a  fee-simple.''' 

1  Edwards    v.    Wickwar,    Law    Rep.  *  Emery  v.  Grocoek,  6  Madd.  54. 

(Eng.)  Eq.  Jan.  1866,  p.  68.  5  Simpson  v.  Gutteridge.  1  Madd.  609. 

'^  Emery  v.  Grocoek,  6  Madd.  54.  6  Barnwall  v.  Harris,  1  Taunt.  430. 

3  Hillary  v.  Waller,  12  Ves.  239.  1  Ibid. 


CHAP.    XIIT.]  REQUISITES    OF   A   VALID    TITLE.  237 

So  the  Court  will  compel  a  purchaser  to  take  a  title  depending 
upon  parol  evidence  of  adverse  possession  under  the  Statute  of 
Limitations,  3  &  4  Will.  IV.  ch.  27.^  So  King  Charles  II.,  being 
seised  in  fee  of  the  lands  of  A.,  granted  them  by  letters-patent  to 
B.  and  the  heirs  male  of  his  body,  reserving  a  yearly  rent  equal  in 
amount  to  the  quit-rent  which  would  be  payable  if  they  had  been 
granted  in  fee.  The  reserved  rent  was  thereupon  put  in  charge 
in  the  Crown  rentals,  as  if  it  were  a  quit-rent,  and  so  continued. 
Subsequently,  in  1776,  the  estate  tail  determined,  by  failure  of  the 
issue  male  of  B.  ;  and  ever  afterwards  the  person  deriving  under 
the  patentee  continued  in  possession,  claiming  in  fee-simple,  and 
paying  tbe  rent  reserved  in  the  letters-patent,  as  quit-rent.  The 
lands  having  been  decreed  to  be  sold,  held,  upon  exception  to  a 
report  of  good  title,  that  the  title  of  the  Crown  was  barred,  and 
transferred  to  the  vendor,  by  the  operation  of  the  48  Geo.  III. 
ch.  47,  and  the  exception  was  overruled.^  Upon  the  same  principle, 
it  was  held,  that  a  deed  under  which  lands  had  been  claimed  forty 
years,  purporting  to  be  executed  before  the  mayor  of  Georgetown, 
though  without  covenants,  seal  of  the  mayor,  or  certificate  that  he 
was  mayor,  could  not  be  objected  to  by  the  vendee  as  a  defect  in 
the  title.3 

38.  A  title  may  be  questionable,  as  derived  from  a  married 
woman  or  an  infant.  A  vendee  will  not  be  compelled  to  take  a 
title  founded  on  a  decree  against  an  inftuit,  because  the  latter  may 
show  cause  against  it  when  of  age.'^  So  where  title  is  sought 
through  a  wife,  the  husband  must  be  made  a  party,  in  order 
to  decree  a  good  title  ;  or  where  there  is  a  dower  interest  out- 
standing.^ So  in  case  of  devise  to  A.  for  life,  remainder  to  B.  for 
life,  remainder  to  his  sons  successively  in  tail  male ;  A.  and  B., 
during  the  infancy  of  B.'s  eldest  son,  obtained  an  act  of  Parlia- 
ment, vesting  the  estates  in  trustees,  in  trust  to  sell.  Held,  that 
A.  and  B.  must  covenant  with  the  purchaser  for  the  title. *^  So,  a 
vendor  dying  intestate,  and  leaving  an  infant  heir,  the  purchase- 
money,  being  paid  into  court  in  a  suit  for  specific  performance 
instituted  after  his  death,  will  be  retahied,  till  the  heir  attains 
twenty-one,  and  conveys.^     So  conditions  of  sale,  after  stating  that 

1  Scott  V.  Nixon,  3  Dm.  &  Warr.  388.  5  Watts  v.  Waddle,  1  McL.  200. 

2  Tuthill  V.  Kogers,  1  Jo.  &  Lat.  36.  •>  London  Bridge,  &c.,  13  Sim.  176. 

3  Brown  v.  Witter,  10  Ohio,  142.  1  Bullock  v.  Bullock,  1  Jac.  &  W.  603. 

4  Bryan  v.  Keed,  1  Dev.  &  Bat.  Eq.  86. 


238  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    XIII. 

the  estate  was  by  settlement  limited  to  IMrs.  C.  for  life,  with 
remainder  to  trustees  in  trust  to  sell  for  the  benefit  of  her  chil- 
dren, proceeded  as  follows  :  "  And  there  being  three  such  children 
only,  all  of  whom  have  attained  the  age  of  twenty-one,  such  chil- 
dren or  their  trustees  shall,  if  required,  join  in  the  conveyance  to 
the  purcliaser ;  but  no  objection  to  the  title  of  the  vendors  shall  be 
made  on  account  of  the  sale  taking  place  during  the  life  of  Mrs.  C." 
Two  of  the  children  of  Mrs.  C.  were  married  women,  having  chil- 
dren who  were  minors  ;  and  they  had  settled  their  portion  of  the 
money  to  arise  from  the  sale  of  the  estate  in  trust  for  themselves 
for  life,  with  remainder  to  tlieir  children.  Held,  that  neither  the 
children  of  Mrs.  C.  nor  the  trustees  had  legal  capacity  to  join  in  a 
conveyance,  and  therefore  a  purchaser  was  entitled  to  recover  the 
deposit.^ 

39.  But,  on  the  other  hand,  an  estate  was  settled  to  the  husband 
and  wife  successively  for  life,  with  remainder  to  their  children, 
as  they  should  appoint,  and,  in  default  of  appointment,  between 
such  children.  The  husband  and  wife  incumbered  their  life  inter- 
ests, and,  having  seven  children,  appointed  the  whole  estate  to  the 
eldest  daughter.  Soon  after,  the  husband,  wife,  and  daughter 
mortgaged  the  property,  with  power  of  sale.  The  mortgagee  sold 
to  the  plaintiff;  and,  after  the  title  had  been  approved,  one  of  the 
younger  children  gave  notice  to  the  plaintiff  not  to  complete,  and 
that  the  appointment  was  a  fraud  on  the  marriage  settlement,  and 
also  cautioning  the  purchaser  not  to  pay  the  purchase-money. 
Held,  no  objection  to  the  title,  and  that  the  purchaser  must  com- 
plete the  sale.2  So  it  is  no  objection  to  a  sale  in  court  in  execution 
of  a  will,  that  there  are  infants  interested  under  the  will,  who 
cannot  join  in  the  conveyance.^  So  two  persons,  one  an  infant, 
being  joint  claimants  of  a  lot,  the  elder  sells  it,  and  covenants  to 
deliver  the  deed  of  both,  upon  payment  of  the  purchase-money. 
The  whole  price  falls  due,  payment  is  enforced,  and  the  deed  made 
and  tendered  before  the  infant  attains  to  majority.  Held,  the 
vendee  cannot  object  to  the  deed  on  account  of  the  infancy.* 

40.  Upon  a  bill  for  specific  performance  of  a  sale,  and  excep- 
tions to  the  Master's  report  in  favor  of  the  title,  one  link  in  the 
chain  was  a  deed  found  among  the  title-papers  accompanying  the 

1  Moseley  v.  Hide,  6  Eng.  Law  &  Eq.         3  Powell  v.  Powell,  6  Madd.  53. 

247.  4  Beckwith  v.  Marryman,  2  Dana,  371. 

2  Green  v.  Pulsford,  2  Beav.  70. 


CHAP.    XIII.]  REQUISITES    OF   A    VALID   TITLE.  239 

possession,  but  with  respect  to  which  the  weight  of  evidence  was, 
that  the  deed  was  not  genuine.  By  exchuling  that  deed,  the 
complainant  would  be  reduced  to  rely  upon  adverse  j^ossessmi, 
which  was  less  than  twenty-five  years.  There  was  slight  evidence 
that  the  maker  of  the  deed  was  an  alien  ;  and,  if  not  so,  there  was 
no  account  of  his' heirs  or  devisees.  Held,  a  case  proper  for  an 
issue  at  law.  If  the  complainant's  title  had  been  clearly  adverse 
for  twenty-five  years,  it  would  not  be  sufficiently  impeached  by 
the  possibility,  either  of  an  escheat,  or  of  such  grantor's  having 
left  heirs  or  devisees,  whose  title  would  be  protected  by  disabilities. 
Such  title  by  adverse  possession  would  be  sufficient  to  preclude  all 
other  questions,  and  to  be  made  the  ground  for  a  decree.^ 

41.  In  the  same  connection,  it  may  be  stated  that  the  alienage 
of  the  vendee  is  an  insufficient  ground  to  entitle  the  vendor  to  a 
decree  rescinding  a  sale,  though  it  may  afford  a  reason  for  refusing 
specific  performance  against  the  vendee.  But,  if  the  parties  have 
not  an  adequate  remedy  at  law,  the  vendor  may  be  considered  as  a 
trustee  for  purchasers  under  a  sale  by  order  of  the  Court,  for  the 
benefit  of  the  vendee.^ 

42.  The  following  miscellaneous  principles  and  cases  may  prop- 
erly be  stated  in  connection  with  the  subject  of  this  chapter  :  — 

43.  A  reservation  of  salt-works,  mines,  &c.,  in  1704,  with  a 
right  of  entry,  though  there  was  no  instance  of  any  claim,  and  the 
title  had  been  transferred  in  1761,  without  such  reservation  upon 
the  usual  covenants,  was  held  an  objection  to  the  title  giving  a 
right  to  compensation,  the  purchaser  not  insisting  upon  it  further ; 
the  Court  being  of  opinion  that  the  inference  of  abandonment  of  a 
right  from  non-user  is  not  applicable  to  the  case  of  mines.'^ 

44.  Commissioners  under  an  inclosure  act  were  empowered  to 
allot  common  lands  among  the  proprietors  of  common  lands  in  the 
parish,  and  to  assign  any  messuages,  buildings,  new  allotments, 
and  old  inclosures,  in  exchange  for  others  ;  so  that  such  exchange 
should  be  ascertained  in  the  commissioners'  award,  or  in  some 
deed  executed  by  them,  and  be  made  with  the  consent  in  writing 
of  the  respective  proprietors.  An  appeal  was  provided  to  the 
quarter  sessions  in  six  months  after  cause  of  complaint.  The 
commissioners,  among  other  things,  awarded  to  A.,  in  respect  of 
an  estate  of  his  in  the  parish,  rented  by  B.  and  C,  furze  close 

1  Seymour  v.  Delancey,  1  Hopk.  436.  ^  Seaman  v.  Vawdrey,  10  Ves.  390. 

2  Hepburn  v.  Dunlap,  1  Wheat.  179. 


240  LAW   OF   VENDORS   AND   PURCHASERS.  [CHAP.    XIII. 

of  five  acres,  and  hill  dose  of  four  acres,  late  A.'s  land ;  and  to  D., 
a  proprietor  of  meadow  and  arable  land  in  the  parish,  in  respect 
of  his  freehold  estate,  two  acres  of  arable,  called  iShortlands,  late  a 
common  field,  and  sixteen  acres  of  old  inclosure,  called  Stearts, 
late  A.'s ;  without  saying  that  the  several  closes  had  been  given 
in  exchange  for  each  other,  but  concluding  the  award  with  an 
approbation  of  the  exchanges  made  between  A.  and  D.  There 
was  no  consent  in  writing  by  A.  or  D.  Held,  in  1813  D.  could 
make  no  title  to  Stearts  or  SJiortlands,  the  lands  awarded  him, 
though  they  had  been  in  his  possession  ever  since  the  execution 
of  the  award  in  1798.^ 

45.  Trustees  were  empowered  by  act  of  Parliament  to  sell  and 
exchange  all  or  any  of  the  hereditaments  mentioned  in  the  sched- 
ule to  the  act,  amongst  which  was  a  farm,  called  the  Mountain 
Farm,  parcel  of  the  manor  of  W.  In  the  body  of  the  act  there  was 
a  proviso  that  the  manor  of  W.  should  not  be  sold.  The  trustees 
having  contracted  to  sell  the  Mountain  Farm,  held,  the  purchaser 
was  not  bound  to  accept  the  title.^ 

46.  It  is  a  sufficient  objection  to  a  title,  that  a  person,  under 
whom  the  vendors  claim,  held,  during  his  seisin  of  the  estate,  a 
newly  created  office  under  the  Crown  (that  of  Commissioner  of 
Dutch  Property),  in  which  he  was  directed  by  statute  to  pay  the 
surplus  (after  certain  charges  answered)  of  the  proceeds  of  certain 
sales  into  the  Bank  of  England,  there  to  remain  subject  to  such 
orders  as  the  king  in  council  should  give  thereon,  and  that  his 
accounts  with  the  Crown  were  not  yet  liquidated  ;  the  lands  being 
liable  to  an  extent  under  the  Stat.  13  Eliz.  ch.  4,  and  at  common 
law  also.^ 

47.  By  conditions  of  sale,  it  was  stipulated  that  the  vendor  of 
an  estate,  sold  in  lots,  should  deliver  an  abstract  of  the  title  to  the 
purchasers,  and  deduce  a  good  title,  but  as  to  a  part  of  the  estate, 
acquired  under  an  inclosure,  should  not  be  bound  to  show  any 
title  prior  to  the  award  ;  that  he  should  deliver  up  to  the  largest 
purchaser  in  value  all  the  title-deeds  and  other  documents  in  his 
custody,  but  should  not  be  required  to  produce  any  original  deed 
or  other  documents  than  those  in  his  possession,  and  set  forth  in 
the  abstract.  Held,  the  conditions  did  not  relieve  the  vendor  from 
verifying  the  title  shown  upon  the  abstract,  by  producing  the  title- 

1  Cox  V.  King,  3  Bing.  N.C.  795.  3  Wilde  v.  Fort,  4  Tauu.  334. 

2  Lincoln  v.  Arcedeckne,  1  Coll.  98. 


CHAP.    XIII.]  REQUISITES.  OF   A    VALID    TITLE.  241 

deeds  themselves,  or,  if  any  of  them  were  not  in  his  possession,  by 
other  satisfactory  evidence.  A  vendor,  to  exonerate  himself  from 
the  production  of  any  evidence  necessary  to  verify  tlie  title  beyond 
what  the  title-deeds  in  his  own  custody  will  supply,  is  bound  so  to 
inform  the  purchaser  in  clear  and  explicit  terms. ^ 

1  Southby  V.  Hutt,  2  My.  &  C.  207. 


16 


242  LAW    OP   VENDORS   AND    PURCHASERS.  [CHAP.    XIV. 


CHAPTER   XIV. 

TITLE    OF    THE    VENDOR  ;    MUTUAL    CLAIMS  OF    THE    PARTIES,    AS 
DEPENDING   THEREON. 


1.     Mutuality  of  the  rights  of  vendor  and  5.     Question  of  time,  as  bearing  upon  the 

vendee;  chiim  of  the  former  to  the  price,  as  rights  of  vendor  or  vendee ;  notice;  title  at  the 

depending  upon  title,  and  of  tlie    latter   to  time  of  decree  in  equity ;  title-deeds. 
a  deed,  as  depending  on  payment  or  tender  12.      Waiver  of    the  rights   of  a  party; 

of  the  price.     Suits  in  equity  and  at  law.  notice,  possession,  delay,  &c. 

3.  What  deed  the  vendor  is  required  to  15.  Right  of  the  vendor  to  rescind  for 
tender;  deed  of  a  third  person.  want  of  title. 

4.  Effect  of  the  vendor's  disabling  him- 
self to  convey. 

1.  In  connection  with  the  general  subject  of  the  title  which  a 
vendor  must  make  to  the  vendee,  we  proceed  to  consider  more 
particularly  the  claim  of  the  former  upon  the  latter  for  the  stipu- 
lated price,  as  affected  by  his  making  or  failing  to  make  such 
title. 

2.  Upon  this  point  it  is  the  general  principle  —  equally  a  rule 
of  law,  equity,  and  moral  justice  —  that  the  rights  and  duties  of 
the  parties  to  a  sale  and  purchase  of  real  property  are  mutual  or 
reciprocal;  that  the  vendor  cannot  claim  the  price  without  having 
conveyed  or  offered  to  convey  the  land ;  nor  the  vendee  the  land 
without  having  paid  or  offered  to  pay  the  price. (a)  Thus,  it  is 
said  to  be  a  universal  rule  of  equity,  that  he  who  asks  for  a  specific 
performance  must  be  himself  in  a  condition  to  perform.  There- 
fore the  vendor,  being  unable  to  make  a  title  free  from  incum- 
brances, is  not  entitled  to  a  decree  for  specific  performance.^     So, 

1  Morgan  v.  Morgan,  2  Wheat.  290,  299;  Smith  v.  M'Cluskey,  45  Barb.  610; 
Small  V.  Reeves,  14  Ind.  163. 

(a)  The  same   general  principle    has  the    lessee,    the    purchase-money  to    be 

been  applied,  in  case  of  a  contract  relating  paid  on  completion  of  a  good  title  by  the 

to  real  and  personal  property,  to  the  title  plaintiff.      Before  completion   of  a   good 

of  the  latter,  and  as  between  the  vendee  title,  the  contract  was  rescinded  by  con- 

and  a  third  person.     Thus  the   plaintiff  sent  of  both  parties.     Held,  the  furniture 

let  a  liouse  and  the  furniture  therein  for  never  vested  in  the  lessee,  and  therefore 

six   months.      During    that    period,   the  could  not  be  taken  under  an  execution 

plaintiff  and  the   lessee   entered   into   a  against   him.      Lanyon    v.    Toogood,    13 

written    contract,   whereby   the    plaintiff  Mees.  &  Wels.  27. 
agreed  to  sell  the  house  and  furniture  to 


CHAP.    XIV.]  TITLE    OP   THE   VENDOR,    ETC.  243 

under  a  contract  to  pnrchasc  land,  generally,  good  and  snfficiont 
titles  must  be  delivered  or  tendered  before  the  purchase-money 
can  be  recovered.  A  covenant  by  the  vendee  to  pay,  and  of  the 
vendor  to  convey  upon  payment,  arc  dependent  covenants  ;(a) 
and  an  action  to  compel  payment  cannot  be  maintained,  without 
proof  of  a  previous  tender  of  a  conveyance.^  So  the  declaration 
in  an  action  for  the  price  must  aver  a  readiness  to  convey,  and 
the  plaintiff  must  prove  his  ability  to  convey .^  So  if  one  party 
covenants  to  convey  land  to  the  other  within  one  year,  at  an 
agreed  price  per  acre  ;  and  the  other  to  pay  the  same  price  within 
the  same  time ;  the  covenants  are  dependent,  and  neither  party 
can  maintain  an  action  against  the  other,  without  proof  that  he 
was  ready  and  willing  to  perform  on  his  part  at  the  proper  time.^ 
So  it  is  held,  that  a  purchaser  discovering  an  incumbrance  may 
retain  so  much  of  the  price.*  So  a  purchaser  (though  with  war- 
ranty) will  not  be  compelled  to  receive  a  title  and  pay  the  pur- 
chase-money, if  an  apparently  valid  adverse  title  has  been  asserted ; 
and,  if  there  is  no  probability  that  the  claim  purchased  will  pre- 
vail, equity  will  enjoin  the  payment  of  the  purchase-money,  and 
dissolve  the  contract.^  So  an  injunction,  to  a  judgment  for  the 
purchase-money,  ought  not  to  be  dissolved,  until  a  good  and  suffi- 
cient deed  be  tendered  by  the  vendor.^  So  where  a  purchaser 
stipulates  to  pay  the  residue  of  the  purchase-money  on  a  day 

1  Adams  v.  Williams,  2  W.  &  S.  227;  *  Troughton  v.  Troughton,  1  Ves.  88. 

Tharin  v.  Fickling,  2  Rich.  361.  5  Young    v.    Lillard,    1    Marsh.   482  ; 

'^  Lawrence  v.  Dole,  11  Verm.  549.  Marlow  v.  Marlow,  2  P.  Wms.  19'J. 

3  Low   V.   Marshall,   17    Maine,   232 ;         6  Grantland  v.  Wight,  2  Munf.  179. 
Lawrence  v.  Dole,  11  Verm.  549. 

(a)  The  dependence  or  independence  having  covenanted  to  do  two  things,  one 

of  covenants  is  to  be  collected  from  the  of  wliich  he  lias  done,  may  maintain  an 

evident  sense  and  meaning  of  the  parties,  action  for  tlie  part  done,  as  upon  an  inde- 

Balch  V.  Smitli,  12  N.H.  444.      And  this  pendent  covenant.     But,  if  the  failure  of 

intention  is  to  be  sought  for,  rather  in  the  the  plaintitf  to  perform  any  covenant  has 

order  of  time  in  which  the  acts  are  to  be  been  injurious  to  the  defendant,  the  latter 

done,  than  from  the  structure  of  the  in-  may  set  up  this  injury  as  a  defence  pro 

strument.      Goodwin  v.  Lynn,  4  Wash,  tanto.     Ibid.     (See  Cuveiiant.) 

C.  C.  714.  In  a  contract  between  parties,  relative 

When   the   time   for  paying  the   last  to   the   same    subject,    some    stipulations 

instalment  under  a  land  contract  has  ex-  may   be   mutual    and    independent,   and 

pired,  tlie  obligations  to  pay  the  money  others    dependent    aiul    mutually   condi- 

and  to  convey  are  mutual  and  dependent  tional.     Thus  the  plaintiff,  without  hav- 

covenants,  to  be  executed  simultaneously,  ing   tendered   perfornumce   on   his    part, 

Eunkle  v.  Johnson,  30  111.  328.  recovered  on  a  breach  of  one  covenant 

Though  dependent  in  form,  the  cove-  because  it  was  independent,  and  failed  on 

nants  will  be  construed  as  independent,  the    other    because    it    was    dependent, 

when   necessary  to  effect  justice.     Todd  Kane  v.  Hood,  13  Tick.  282;    Couch  v. 

V.  Simmons,  2  Gratt.  167.     Hence  a  party,  Ingersoll,  2  Pick.  292. 


244  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XIV. 

specified,  upon  the  vendor's  making  a  good  title,  or,  otherwise,  if 
such  title  should  not  be  completed,  upon  his  executing  a  bond  to 
complete  such  title  and  to  convey  the  estate  as  soon  as  the  same 
could  be  completed :  the  vendor  is  bound  to  show  a  good  title ; 
and,  till  a  good  title  is  shown,  the  purchaser,  though  he  had 
entered  into  possession,  is  not  bound  to  pay  the  purchase-money.^ 
So  where  the  legal  title  cannot  be  conveyed,  and  the  vendee  must 
resort  to  a  Court  of  Equity  to  establish  his  title,  notwithstanding 
a  conveyance  of  all  the  right  of  the  vendor  to  him,  the  Court  will 
not  compel  him  to  pay  the  purchase-money,  and  thus  take  a  laio- 
suit  instead  of  the  land.^  So  where  a  purchaser  by  bond  for  a 
deed  enters,  but  fails  to  comply  with  the  terms  of  purchase  ;  the 
vendor  may  bring  an  action  of  ejectment  against  him.^  So  where 
a  vendor  covenants  to  give  a  deed  on  a  certain  day,  and  the  pur- 
chaser covenants  on  the  same  day  to  pay  part  of  the  consideration, 
and  give  security  for  the  residue  ;  the  covenants  are  dependent, 
and  neither  party  can  maintain  an  action,  without  averring  per- 
formance, or  readiness  to  perform,  on  his  part.*  So  where  a  sale 
has  been  in  part  executed  by  a  conveyance  of  part  of  the  land,  and 
the  vendor  is  unable  to  convey  the  residue ;  equity  will  decree 
repayment  of  a  proportionate  part  of  the  purchase-money,  with 
interest.^(a) 

1  Clarke  v.  Faux,  3  Russ.  320.  *  Garley  v.  Price,  16  Johns.  267. 

2  Bank,  &c.  v.  Has;ner,  1  Pet.  455.  *  Pratt  v.  Law,  9  Cranch,  494. 

3  Dean  v.  Comstock,  32  111.  173. 

(a)  The  following  miscellaneous  cases  cottage  portion   of  Magnolia  Farm,   for 

more  fully  Illustrate  the  general  rule  in  $3,000,  to  be  paid  as  follows :  .$1,500  on 

the  text :  —  the  1st  of  January,  1842 ;  $1,000  in  twelve 

Action  on  a  contract,  to  pay  the  plain-  months,  and  $500  in  eighteen  months 
tiff  for  certain  land  $1,500,  "payments  as  after  that  date;  each  of  the  two  latter 
follows  :  $200  cash ;  $300  in  negro  prop-  suras  to  draw  interest  from  the  above- 
erty ;  the  balance  of  §1,000  to  be  paid  in  stated  periods,  or  date  of  the  bond.  At 
one,  two,  and  three  years,  bearing  inter-  the  time  the  agreement  was  made  the 
est  from  the  time  of  possession,  and  giv-  premises  were  under  mortgage,  and,  in 
ing  approved  personal  security  with  a  May,  1842,  were  sold  under  a  decree  of 
mortgage  on  the  premises,  to  secure  the  foreclosure,  pronounced  against  the  plain- 
payment  of  the  $1,000."  Shortly  after  tiff  in  January,  1842.  Held,  the  plaintiff, 
the  contract  was  executed,  the  defendant  in  order  to  recover  on  the  contract,  should 
entered  on  the  land,  and  cultivated  it  for  have  removed  the  incumbrance  and  ten- 
one  year.  The  action  was  for  the  first  dered  to  the  defendant  titles  to  the  farm, 
payment  of  $500.  Held,  the  plaintiff  Also,  that  the  plaintiff  could  not  show, 
could  not  recover,  without  proof  that  he  by  parol,  that  the  defendant  knew  of  the 
had  executed  and  tendered  titles  to  the  mortgage,  and  that  the  agreement  was 
defendant,  before  action  commenced,  entered  into  with  a  view  to  raise  money 
Breithaupt  v.  Thurmond,  3  Rich.  216.  to  pay  it  off.     Tharin  v.  Fickling,  2  Rich. 

The  defendant,  on  the  6th  of  Decem-  361. 

ber,  1841,  agreed  in  writing  to  purchase  One  who  has  agreed  to  convey  three 

from  the  plaintiff   his  farm,   called  the  lots,  two  of  which  are  represented  to  be 


CHAP.    XIY.] 


TITLE   OF   THE   VENDOR,    ETC. 


245 


3.  Ill  reference  to  the  obligation  of  a  vendor  to  give  a  deed  of 
the  land  before  claiming  the  purchase-money,  it  has  been  held  that 


subject  to  a  mortgage  for  §1,750  eacli, 
and  the  tliird  to  a  mortgage  for  $1,600, 
amounting  in  all  to  $5,100,  cannot  main- 
tain a  bill  for  specitic  performance,  if  the 
first  two  lots  are  each  subject  to  a  mort- 
gage for  $1,000,  and  the  third  to  two 
mortgages  amounting  together  to  $1,000, 
and  there  is  a  fifth  mortgage  upon  all  the 
lots  for  $1,500;  although  after  tender  of 
his  deeds  he  has  tendered  an  agreement 
by  the  assignee  of  the  last  mortgage,  that 
either  of  the  first  two  lots  shall  be  released 
from  it,  upon  payment  of  $750.  Park  v. 
Johnson,  7  Allen,  o78. 

The  plaintiff  sold  to  the  defendant  a 
lot  for  $700,  agreed  to  make  a  pavement 
in  front  of  the  property,  and  to  clear  all 
incumbrances ;  and  was  to  receive  the 
$700,  on  giving  a  good  and  sufiicient 
deed.  The  contract  was  dated  17th  June, 
1836,  and  the  defendant  was  to  receive 
the  rent  from  July  1st;  but,  if  the  deed 
was  not  given  by  that  day,  the  plaintifi' 
was  to  receive  the  rent  until  he  gave  a 
good  deed.  Held,  the  payment  and  con- 
A'eyance  were  to  be  concurrent ;  and  a 
declaration,  alleging  that  the  plaintiff  was 
at  all  times  ready  to  execute,  and  did 
execute  and  offer  to  deliver,  a  good  and 
sufiicient  deed,  before  the  action  was  in- 
stituted, was,  after  verdict,  equivalent  to 
an  allegation  of  seisin  in  the  plaintiff. 
Kagan  v.  Gaither,  11  Gill  &  Johns.  472. 

In  the  sale  of  a  farm,  it  was  stipulated, 
that  part  of  the  purchase-money  should 
be  paid  when  the  deed  was  ready,  and 
the  residue  in  annual  instalments.  Held, 
tlie  vendor  could  not  claim  any  part  of 
the  purchase-money,  until  he  had  ten- 
dered an  unincumbered  title  ;  not  merely 
a  warranty  deed ;  the  farm  being  subject 
to  a  mortgage  then  due.  Swan  v.  Drury, 
22  Pick.  485. 

(In  an  action  by  the  vendor  upon  such 
contract,  parol  evidence  is  inadmissible, 
that,  when  the  contract  was  made,  the 
vendee  knew  of  the  mortgage,  and  tiiat  it 
was  then  agreed,  that  the  mortgage  should 
remain.  The  vendor  having  tendered  a 
warranty  deed ;  held,  the  declarations  of 
the  vendee,  made  previously  to  the  ten- 
der, that  he  should  not  insist  on  the 
removal  of  the  incumbrance,  were  not  a 
waiver  of  exception  to  the  title,  unless, 
taken  in  ccmnection  with  what  took  place 
at  the  time  of  tender,  the  whole  evidence 
proved,  that  the  vendee  intended  at  that 
time  to  waive  such  exception  ;  for  such 
declarations,  being  made  without  con- 
sideration,  were   not    obligatory,   it    not 


appearing  that  the  vendor  acted  on  the 
faith  of  them,  or  liad  been  subjected  to 
any  damage  or  expense  thereby.     lb.) 

By  the  conditions  of  a  sale  by  auction 
of  a  copjiiold,  it  was  stipulated,  that  the 
purchaser  should  p;iy  down  a  dejiosit, 
and  sign  an  agreement  for  payment  of 
the  remainder  of  the  purchase-money  at 
a  certain  time,  on  having  a  good  title, 
and  that  he  should  have  a  proper  sur- 
render of  the  estate,  on  such  payment. 
Held,  in  order  to  maintain  an  action,  the 
seller  must  not  only  allege  tliat  lie  had 
been  always  ready  and  willing,  and  fre- 
quently offered,  to  make  a  good  title  and 
a  proper  surrender  on  payment  of  the 
purchase-money ;  but  also  actually  made 
a  good  title,  and  surrendered  the  estate  to 
the  purchaser,  or  a  tender  and  refusal ; 
and  also  what  title  the  seller  had.  Phil- 
lips V.  Fielding,  2  H.  Bl.  123. 

By  an  agreement  under  seal  for  sale 
and  purchase  of  land,  the  defendant  cove- 
nanted to  pay  $2-50  on  a  certain  day,  and 
the  plaintiff  covenanted,  that,  upon  per- 
formance of  the  covenant  of  the  defendant, 
he  would  "  execute  to  him,  his  heirs  and 
assigns,  a  good  warrantee  deed  of  convey- 
ance." The  declaration  alleged,  that  the 
plaintiff  was,  and  had  been  at  all  times, 
ready  and  willing,  on  payment  of  the 
$250,  &c.,  to  execute  a  good  warrantee 
deed  of  conveyance,  &c.,  but  that  the 
defendant  did  not  pay  the  $250,  &c. 
Pleas,  that  the  plaintiff  was  not  seised, 
&c.,  and  had  no  title;  and  that  tiie  plain- 
tiff did  not  on  the  day  appointed,  nor  at 
any  time  since,  tender  or  otter  to  execute 
a  good  warrantee  deed  of  conveyance. 
Held,  the  covenants  were  dependent  ; 
that  the  words,  "  a  good  warrantee  deed 
of  conveyance,"  referred  to  the  instru- 
ment of  conveyance  only,  and  not  to  the 
title  ;  that  the  first  plea  was  not  sufficient, 
because,  to  an  action  on  a  deed  or  spe- 
cialty, mere  failure  of  consideration  is  no 
defence  at  law.  But  that  the  second  plea 
was  good,  for  the  vendor  cannot  nuiintain 
an  action  for  the  purchase-money,  without 
having  executed  or  actually  tendered  a 
conveyance.  Parker  v.  Parmele,  20 
Johns.  130. 

Bond  from  defendant  to  plaintifi"  to 
convey  land  by  a  quitclaim  deed,  at  a  day 
named,  on  payment  of  a  certain  sum.  On 
the  day,  the  plaintifi",  having  tlie  money 
within  reach,  thougli  not  actually  in  hand, 
offered  to  pay  it,  but  made  no  formal 
tender ;  but  tlie  defendant  required  pay- 
ment before  the  conveyance  was  made. 


246 


LAW    OP   VENDORS    AND    PURCHASERS.  [CHAP.    XIV. 


a  promise  "  to  make  a  valid  deed  "  is  not  fulfilled  by  offering  the 
deed  of  a  third  person. ^(a)  It  is  said  (p.  289),  "  The  defendant  was 

1  Ilussey  V.  Roquemore,  27  Ala.  281. 


Held,  the  plaintiff  was  entitled  in  equity 
to  a  decree  for  a  quitclaim  deed  of  tlie 
land,  free  from  incumbrances  since  the 
date  of  tlie  bond.  Parker  v.  Perkins,  8 
Cush.  318. 

Land  was  sold  at  auction  to  the  de- 
fendant, wlio  subscribed  the  terms  of 
sale ;  which  were,  that  a  certain  part  of 
the  purchase-money  sliould  be  paid  within 
seventy-five  hours;  a  deed  given  by  tlie 
vendor,  with  warranty  of  title,  except  as 
to  the  quit-rents,  in  such  lots  as  should 
be  designated  ;  that  tlie  purchaser  should 
execute  a  bond  and  mortgage  for  the 
residue  of  the  purchase-money  ;  and  that 
the  deed,  bond,  and  mortgage,  should 
bear  date  on  the  day  of  the  sale.  At  tlie 
time  of  sale,  the  premises  were  subject  to 
a  registered  and  unsatisfied  mortgage. 
The  vendor  brings  ass)impsit,  for  breach 
of  the  conditions.  Held,  that  giving  the 
deed,  bond,  and  mortgage,  were  to  be 
simultaneous  acts ;  that,  as  the  plaintiff 
was  not  in  a  situation  to  convey  an  inde- 
feasible title,  the  defendant  was  not  bound 
to  perform  the  agreement  on  his  part ; 
and  tliat  defendant's  notice  of  the  regis- 
tration was  immaterial,  because,  according 
to  the  true  construction  of  the  terms  of 
sale,  the  quit-rents  were  the  only  incum- 
brance.    Judson  V.  Wass,  11  Johns.  525. 

Contract  for  the  sale  of  lands,  made  in 
August,  1845.  The  vendee  agreed  to 
pay  therefor  $950;  viz.,  §200  in  April, 
1816,  $200  in  April,  1847,  and  the  rest  in 
two  subsequent  annual  payments.  The 
vendor  agreed  to  deliver  possession  in 
November,  1845,  and  a  deed  in  May,  1846. 
Possession  was  delivered  and  the  first 
instalment  paid,  but  no  deed  delivered  or 
tendered.  Held,  an  action  did  not  lie  for 
the  second  instalment.  Grant  v.  Johnson, 
1  Seld.  247. 

A  bond  was  given  to  sell  and  convey 
certain  land,  upon  payment  of  a  certain 
sum,  by  a  good  and  sufficient  deed  of 
warranty,  and  to  procure  the  wife  of  the 
grantor  to  release  her  dower.  Held,  if 
the  grantor  was  seised,  and  tlie  deed  ten- 
dered was  duly  executed,  with  proper 
covenants  of  warranty,  the  penalty  was 
saved,  although  the  land  was  incumbered 
by  a  mortgage.     The  Court  say  :    "  The 


import  of  these  words  is  confined  to  the 
form  of  the  deed  and  its  execution,  and 
not  to  the  title.  If  tlie  money  was  to  be 
paid  on  receiving  the  deed,  it  might  be  a 
reasonable  construction,  that  a  good  and 
sufficient  title  should  be  conveyed;  other- 
wise the  purchaser  might  part  with  his 
money,  not  merely  for  the  land,  but  for 
a  lawsuit  also.  In  the  present  case,  how- 
ever, the  money  was  to  be  first  paid,  and 
the  plaintiff  might  as  well  sue  on  the 
covenants  in  his  deed,  as  on  his  bond." 
Aiken  v.  Sanford,  5  Mass.  494,  499. 

The  advertised  terms  and  conditions  of 
an  auction  sale  of  land  were,  that  war- 
ranty deeds  should  be  given ;  tliat  pur- 
chasers should  have  ten  days  to  examine 
the  title ;  that  upon  these  terms  the  ven- 
dor would  convey  to  purchasers,  who 
sliould  make  their  payments  and  take 
their  deeds,  within  twelve  days  from  the 
sale,  provided  the  deeds  conformed  to  the 
conditions.  The  defendant,  a  purchaser, 
having  ascertained  that  the  vendor  had 
no  record  title,  except  a  mortgage  made 
to  the  person  from  whom  he  bought,  and 
that  the  latter  derived  his  title  in  part 
from  one  whose  wife  did  not  appear  by 
the  record  to  have  released  her  dower, 
refused  to  make  payment  and  receive  a 
warranty  deed.  Held,  as  the  title  was 
defective,  the  defendant  was  not  bound  to 
take  the  deed.  Fletcher,  J.,  says  (in 
substance):  "By  a  reasonable  and  just 
construction  of  the  contract,  the  plaintiffs 
were  bound  to  make  a  good  and  clear 
title.  Ten  days  were  allowed  purchasers 
to  examine  the  title.  Purchasers  could 
have  no  other  object  in  examining  the 
title,  than  to  see  if  the  plaintifls  could 
make  a  good  title ;  and  there  could  be 
no  object  in  ascertaining  this,  unless  they 
were  bound  to  make  such  title.  The 
purchaser  was  allowed  time  to  examine 
the  title,  to  see  if  he  could  get  what  he 
had  purchased,  and  whether  the  plaintiffs 
actually  had  and  could  convey  what  they 
had  vmdertaken  to  sell.  Upon  examining 
the  title,  the  defendant  ascertained,  and 
such  clearly  was  the  fact,  that  the  plain- 
tiffs could  not  convey  a  good  and  clear 
title.  The  land  was  incumbered,  and  the 
defendant  was  not  bound  to  take  and  pay 


(«)  But  a  late  case  decides,  that  a  con- 
tract to  deliver  "  a  good  and  sufficient 
deed  of  conveyance  "  is  satisfied,  if  the 


contracting  party,  having  no  good  title, 
procures  a  good  conveyance  from  the 
owner.     Bateman  v.  Johnson,  10  Wis.  1. 


CHAP.    XIV.] 


TITLE    OF   THE   VENDOR,    ETC. 


247 


not  bound  to  accept  a  deed  from  any  other  person  than  the  plaintiff. 
If  the  title  was  in  the  party  who  made  the  tender,  it  might,  it  is  true, 


for  an  incumbered  estate.  The  delendant 
did  not  contract  for  a  deed  only  ;  he  con- 
tracted for  and  purchased  the  land.  The 
plaintiffs  undertook  to  nudce  to  the  de- 
fendant a  good  and  clear  title  to  the 
land."  Mead  v.  Fox,  6  Cush.  199,  201, 
202. 

Declaration,  that  it  was  agreed  between 
the  plaintiff  and  defendant,  that  the  plain- 
tiff siiould  purchase  two  houses  of  the 
defendant  for  the  residue  of  a  term  of 
years,  &c. ;  that  the  defendant  should 
paper  them,  &c. ;  that  the  plaintiff  should 
pay  part  of  the  purchase-money  on  com- 
pletion of  the  conveyance,  and  that  the 
defendant  should  make  a  good  title.  The 
agreement  was  as  follows :  "  [The  plain- 
tiff] having  agreed  to  purchase  of  [the 
defendant]  two  leasehold  houses,  &c. ; 
[the  defendant]  hereby  agrees  to  paper, 
&c.,  [the  plaintiff]  to  pay,  &c.,  at  the  time 
of  the  conveyance,  &c."  Held,  the  agree- 
ment to  purchase,  though  recited  as  an 
existing  agreement,  was  to  be  considered 
as  part  of  the  agreement  produced ;  also, 
that  there  was  no  variance  (m  the  ground 
that  the  agreement  was  silent  as  to  the 
title,  the  contract  to  make  a  title  being 
implied.  Hall  v.  Betty,  i  Mann.  &  G. 
410. 

By  an  indenture  dated  in  March,  A. 
agrees  to  give  B.  450  acres  of  land  in 
Ridgeville,  Ohio,  the  land  to  be  as  good 
as  C.'s,  and  B.  is  to  receive  in  addition 
§200  at  or  before  the  1st  of  July,  and  A., 
as  agent  of  D.,  is  to  receive  therefor 
certain  lands  of  B.,  the  possession  to  be 
given  of  B.'s  land  by  the  1st  of  April, 
and  B.  is  to  make  his  selection  after  E., 
C,  and  F.,  w'hich  selection  is  to  be  made 
by  or  before  the  1st  of  July,  and  in  conse- 
quence of  B.'s  not  satisfying  himself,  then 
G.,  H.,  and  I.  shall  average,  if  he  chooses 
the  land  above-mentioned  according  to 
the  above  contract,  or  refuses  to  select, 
himself,  and  if  the  said  lands  should  not 
prove  to  be  as  good  as  the  average  of 
lands  in  that  vicinity  of  towns,  then  this 
contract  to  be  void.  Held,  that  the  cove- 
nant of  B.  to  deUver  possession  by  the  1st 
of  April  was  an  independent  covenant ; 
that  A.  might  declare  for  a  breach  of  it 
without  taking  any  notice  of  his  own  cov- 
enants ;  and  that  it  was  insufficient  to 
plead,  that  the  land  in  Kidgeville,  from 
which  B.  might  have  made  his  selection, 
was  not  as  g(jod  as  C's,  or  tliat  A.  was  not 
the  agent  of  D.,  or  not  authorized  by  1).  to 
make  the  contract  or  to  prosecute  the  ac- 
tion, or  that  D.  had  no  land  in  Ridgeville. 


Held,  also,  that  the  covenants  to  convey 
were  mutual  dependent  covenants,  and 
that  A.  should  have  averred  performance 
on  his  own  part,  or  an  excuse  for  non- 
performance ;  and  that.  B.  having  omitted 
to  select  by  the  1st  of  -luly,  the  jtaynient 
or  tender  of  tlie  Sl^OO  was  a  condition 
precedent  to  A.'s  right  to  demand  a  deed 
of  B.,  and  should  have  been  averred. 
Couch  V.  IngersoU,  2  Pick.  800.  Wilde, 
J.,  says :  "  Tlie  principal  object  of  the 
contract  was  the  exchange  of  lauds.  No 
time  was  appointed  for  nuikiug  the  con- 
veyances, but  as  the  one  conveyance  was 
the  consideration  of  the  other,  we  cannot 
doubt  that  it  was  the  intention  of  the 
parties  that  both  should  be  made  at  the 
same  time.  The  plaintiff  declares  that 
the  defendant's  covenant  was  to  have 
been  iierformed  within  a  reasonable  time  ; 
but  it  cannot  be  held  reasonable  that  the 
plaintiff'  should  require  the  defendant  to 
perform  his  covenant,  before  the  plaintiff 
should  be  readj'  to  perform  his.  If  the 
parties  had  intended  that  any  such  ad- 
vantage of  priority  should  be  secured  to 
either  party,  it  would  have  been  expressed 
in  the  deed.  It  has  been  argued,  that  the 
defendant  was  bound  to  convey  at  the 
same  time  he  was  to  deliver  possession ; 
but  it  is  manifest  from  the  language  of  the 
deed,  that  such  was  not  the  intention  of 
the  parties.  .  The  two  conveyances  were 
to  be  concurrent  acts,  and  the  covenants 
are  therefore  dependent.  But  this  point 
does  not  appear  to  be  material.  For  if  the 
plaintiff  was  prevented  from  performing 
liis  covenant  by  the  neglect  of  the  de- 
fendant, it  is  equivalent  to  performance 
by  the  lilainliii'.  Now  it  is  clear  that  no 
conveyance  coidd  be  made  by  the  plaintiff', 
before  the  selection  of  the  lands  was  made, 
and  this  selection  was  to  be  made  by  the 
defendant.  If  he  refused  to  make  it,  it 
was  incumbent  on  him  to  give  notice, 
that  the  selection  might  be  nuide  by  the 
three  commissioners.  This  defect  in  the 
declaration,  however,  is  not  material,  be- 
cause on  another  ground  the  declaration 
is  defective.  It  is  stipulated  in  the  deed, 
that  the  plaintiff'  should  pay  the  sum  of 
$200.  If  this  j)ayment  was  to  be  nuide 
previous  to  the  time  when  the  convey- 
ances were  to  be  made,  or  at  the  same 
time,  it  is  very  clear  that  the  plaintiff" 
cannot  recover  without  averring  that  he 
paid  or  tendered  payment  of  the  money. 
This  payment  was  to  have  been  made  the 
1st  day  of  July,  nearly,  a  month  before 
the  time  when  a  deed  was  demanded,  and 


248 


LAW  OP  VENDORS  AND  PURCHASERS.     [CRAP.  XIV. 


have  accomplished  the  object  of  the  contract,  which  could  only 
have  been  the  transfer  of  a  valid  title  ;  but  it  might  have  involved 


before  the  time  contemplated  by  the  par- 
ties for  the  performance  of  the  principal 
covenants.  The  defendant  was  not  obliged 
to  make  the  selection  before  the  1st  day 
of  July  ;  and  if  not  tlien  made,  a  further 
time  was  allowed,  that  it  might  be  made 
by  the  men  appointed  for  that  purpose. 
When  the  plaintifl'  demanded  a  deed  of 
the  defendant  on  the  oOth  day  of  July,  he 
was  obligated  to  pay  or  tender  payment  of 
the  $200." 

Agreement,  that  the  defendant  should 
have  certain  land,  for  which  he  was  to  pay 
the  plaintiff  a  certain  sum  in  three  instal- 
ments, the  deed  to  be  executed  at  the  com- 
pleting of  the  last  payment.  Held,  the 
agreement  to  pay  the  first  two  instalments 
was  independent,  but  the  agreements  of 
tlie  defendant  to  pay  the  last  instalment, 
and  of  the  plaintiff  to  execute  and  deliver 
the  deed,  were  mutually  dependent  and 
conditional.  Shaw,  C.J.,  says  :  "  Where 
the  whole  purchase-money  is  to  be  paid  at 
once,  and  the  deed  is  to  be  tlien  given, 
the  covenants  are  held  to  be  dependent, 
because  it  is  unreasonable  to  jiresume 
that  the  purchaser  intended  to  pay  the 
whole  consideration,  without  having  the 
equivalent,  in  a  title  to  the  land  pur- 
chased. The  same  reason  applies  to  the 
last  instalment.  An  obvious  reason  why 
the  first  and  second  instalments  should  be 
paid  without  having  a  deed  is,  that  the 
vendor  was  to  witlihold  the  title,  as  a 
security  for  the  purchase-money,  and  the 
vendee  was  content  to  rely  on  the  ven- 
dor's contract  for  his  future  title ;  but  no 
such  reason  applies  to  the  final  and  com- 
plete pavment  of  the  purchase-money." 
Kane  v.  Hood,  13  Pick.  281,  283. 

The  plaintiff  agreed  to  sell  the  defend- 
ant his  estate  for  a  certain  sum  before  a 
particular  day,  in  consideration  whereof 
the  defendant  agreed  to  pay  that  sum  on 
the  day,  and,  on  failure,  to  pay  £21. 
Held,  tlie  covenants  were  dependent ;  and 
the  plaintifl'  could  not  recover  the  £21, 
without  showing  a  conveyance  on  his 
part,  or  a  tender  of  one.  Goodisson  v. 
Nunn,  4  T.  II.  761. 

The  plaintiff'  covenanted  to  sell  to  the 
defendant  a  school-house,  &c.,  and  to  con- 
vey the  same  to  him  on  or  before  the  1st 
of  August,  and  to  deliver  possession  in 
June,  and,  in  consideration  thereof,  tiie 
detendant  covenanted  to  pay  tlie  ijlaintitf 
£120,  on  or  before  the  1st  of  August,  1797. 
Held,  the  covenants  were  dependent  cov- 
enants ;  and  the  plaintiff  could  not  main- 
tain   an    action    for    the    £120,    without 


averring  that  he  had  conveyed  or  tender- 
ed a  conveyance.  Glazebrook  v.  Wood- 
row,  8  T.  li.  366. 

The  defendant,  in  consideration  of  the 
covenants  of  the  plaintiff'  in  the  same 
deed,  covenants  that  he  will  purchase 
certain  lands  of  the  plaintiff',  then  in  pos- 
session of  the  defendant,  and  will  pay  for 
the  same  a  certain  sum  in  four  years,  with 
interest  annually  ;  and  the  plaintiff  cove- 
nants that  he  will  deliver  to  the  defendant 
a  conveyance  of  the  land,  upon  his  pay- 
ing the  said  sums  at  the  time  or  times 
mentioned.  Held,  the  plaintiff"  might  re- 
cover the  interest  at  the  end  of  each  of  the 
three  fii'st  years,  by  way  of  rent ;  but  not 
the  fourth  year's  interest,  nor  the  princi- 
pal, without  making  a  tender  of  the  con- 
veyance. Gardiner  y.  Corson,  1-5  Mass.  504. 
Jackson,  J.,  says  :  "  The  defendant  was  to 
pay  his  money  for  the  land ;  he  did  not  in- 
tend to  pay  at  the  end  of  the  four  years, 
if  the  plaintiff"  should  then  refuse  to  de- 
liver the  deed.  On  the  other  hand,  the 
plaintiff''s  intestate  was  to  deliver  the  deed 
upon  receiving  the  money ;  he  did  not 
intend  to  convey  the  land,  unless  the 
defendant  should  pay  the  money.  These 
were  mutual  conditions,  and  neither  party 
could  complain  of  the  default  of  the  other, 
until  he  had  offered  to  perform  his  part  of 
the  agreement.  The  defendant  was  al- 
ready in  possession  of  the  land  to  be 
conveyed,  at  the  time  of  executing  the 
instrument.  It  appears  that  he  was  to 
continue  in  possession  during  the  four 
years.  He  would  receive  the  considera- 
tion for  which  this  interest  or  rent  was  to 
be  paid,  whether  the  land  was  finally  con- 
veyed to  him  or  not ;  and  he  therefore 
covenants  to  pay  it,  without  reference  to 
the  expected  conveyance.  This  interest, 
therefore,  does  not  appear  to  us  to  be  a 
sidjstantial  part  of  the  price.  The  price 
was  to  be  paid,  when  he  received  the 
deed  ;  the  deed  not  having  been  delivered 
nor  tendered,  the  plaintiff"  cannot  recover 
tlie  price.  But  the  plaintiff"  was  entitled 
to  sue  for  and  recover  the  interest,  at  the 
end  of  each  of  the  three  first  years ;  and 
nothing  has  since  occurred  to  bar  that 
right.  As  to  the  interest  for  the  fourth 
year,  that  was  to  be  paid,  together  with 
the  principal,  on  receiving  the  deed.  In 
one  view,  this  may  be  considered  to  be 
equitably  due,  as  much  as  the  interest  for 
the  three  preceding  3'ears.  But  the  par- 
ties have  thought  fit  to  make  the  last  pay- 
ment of  interest,  as  well  as  the  payment 
of  the  principal  sum,  depend  on  the  con- 


CHAP,  xrv.] 


TITLE    OF   THE   VENDOR,   ETC. 


249 


the  trouble  and  expense  of  an  inquiry  to  ascertain  whether  such 
title  was  good,  and  this  inquiry  the  defendant  was  under  no  obliga- 
tion to  make."('0 


dition  of  his  receiving  a  deed  at  that 
time." 

Where  it  was  stipuhited,  in  a  con- 
tract for  the  sale  of  a  farm,  tliat  part  of 
the  price  sliould  be  paid  when  the  deed 
was  ready,  and  tlie  residue  in  annual  in- 
stahnents ;  held,  tiie  vendor  could  not 
claim  an}^  part  of  the  price  till  a  tender  of 
an  unincumbered  title  ;  and,  there  being 
a  mortgage  on  the  farm,  that  tender  of  a 
warranty  deed  was  insufticient.  Wilde, 
J.,  sa\'s  :  "  The  agreement  of  the  plaintiff 
was  to  convey  the  farm,  which  must  be 
construed  as  an  agreement  to  convey  a 
good  title  free  from  all  incumbrances. 
There  is  a  material  distinction  between 
the  case  at  bar,  and  tliat  of  Aiken  v.  San- 
ford,  5  Mass.  494.  In  that  case  the  con- 
dition of  the  bond  was,  to  convey  by  a 
good  and  sutBcient  deed  of  warranty,  and 
the  deed  was  not  to  be  given  until  after 
the  i)ayment  of  the  purchase-money.  And 
the  Court  say,  '  that  if  the  money  was  to 
be  paid  on  receiving  the  deed,  it  might  be 
a  reasonable  construction,  that  a  good  and 
suthcient  title  should  be  conveyed.'  That 
such  is  the  law,  we  think  very  clear  ac- 
cording to  all  the  authorities."  Swan  v. 
Drury,  22  Pick.  489. 

A.  agreed  to  convey  to  B.  a  farm  on 
which  C.  lived,  on  the  1st  of  May,  1811, 
and  B.  covenanted  to  pay  to  A.  on  that 
day  $500,  part  of  the  purchase-money. 
On  the  day  appointed,  A.  tendered  a  deed, 
executed  by  A.  and  his  wife,  not  acknowl- 
edged by  the  wife,  and  which  did  not  em- 
brace all  the  farm.  Held,  the  covenants 
were  dependent,  and  delivery  of  the  deed 
and  payment  of  the  money  were  concur- 
rent acts.  Also,  that  this  tender  was  not 
a  performance  of  the  covenant  of  A. 
Jones  V.  Gardner,  10  Johns.  266. 

By  articles  of  agreement  between  the 
plaintilf  and  defendant,  the  plaintiff,  for 
the  consideration  thereinafter  mentioned, 
covenanted  to  execute  and  deliver  to  the 
defendant,  on  the  1st  of  May,  1806,  a 
good  and  sufficient  deed  of  eighty-four 
acres  of  land,  and  the  defendant  cove- 
nanted to  pay  to  the  plaintiff  $1,000  on 
the  1st  of  May,  1806,  and  S875  on  the  1st 
of  May,  1812.  In  an  action  for  the  S1,000, 
held,  these  were  dependent  covenants,  and 
the  plaintiff  must  deliver  or  tender  a  deed 
to  the  defendant,  before  he  could  bring  this 
action.    Greene  v.  Reynolds,  2  Johns.  207. 

(d)  On  the  other  hand,  it  is  helii  that  a 
bill  for  specific  performance  does  not  lie 
against  one  who  contracted  to  convey  to 


the  i)laintifl'  land  of  which  he  was  not  tlie 
owner;  the  i)laintiff  having  knowledge  of 
tlie  fact,  and  it  l)eing  expressly  stipulated 
that  the  deed  shall  come  from  a  third  per- 
son. Nor  will  the  C'ourt  retain  the  bill 
for  the  purpose  of  awarding  damages. 
Hill  V.  Fiske,  38  Maine,  520.  Appleton, 
J.,  says  (p.  521)  :  "There  is  no  allega- 
tion, that  at  the  time  when  this  process 
was  instituted,  he  (the  defendant)  had  the 
title  or  the  means  of  compelling  its  con- 
veyance. It  is  not  in  proof  that  he  has 
since  acquired  the  means  of  doing  either. 
Not  having  the  title,  no  decree  for  a  con- 
veyance will  be  made  against  him.  In 
Hatch  V.  Cobb,  4  Johns.  Ch.  560,  the 
Chancellor  says  :  '  A  specific  performance 
cannot  be  decreed  The  defendant  has 
fairly  disabled  himself  before  the  suit  was 
brought,  and  this  was  known  to  the  plain- 
tiff.' In  Kempshall  v.  Stone,  5  Johns. 
Ch.  193,  the  CiianccUor  says:  'That 
where  the  defendant  has  disabled  himself 
before  filing  the  bill,  and  that  the  plaintiff 
knew  that  fact  before  he  commenced  his 
bill,  it  is  then  reduced  to  the  case  of  a  bill 
filed  for  the  sole  purpose  of  assessing 
damages  for  a  breach  of  contract,  which 
is  a  matter  strictly  of  legal  and  not  of 
equitable  jurisdiction.'  The  same  doc- 
trine has  been  held  to  apply  where  the 
party  contracting  to  convey  never  liad 
any  title  to  the  premises  contracted  to  be 
conveyed.  Morse  v.  Elmendorf,  11  Paige, 
279.  It  is  obvious,  where  the  part}"  con- 
tracting has  no  title  to  the  land  agreed  to 
be  conveyed,  that  there  is  nothing  upon 
which  a  decree  for  a  specific  performance 
can  operate.  Woodark  v.  Bennet,  1  Cow. 
711."  As  to  the  claim  of  compensation,  it 
is  further  remarked  :  "  The  cases  of  com- 
pensation in  equity,  I  consider,"  says 
Lord  Ch. -Baron  Alexander,  in  Newliam 
IK  May,  13  Price,  752,  "  to  have  grown 
out  of  the  jurisdiction  of  Courts  of 
Equity,  as  exercised  in  respect  to  con- 
tracts for  the  purchase  of  real  property, 
when  it  is  often  ancillary  as  incidentally 
necessary  to  eflectuate  decrees  of  specific 
performance.  It  is  well  settled,  that 
where  the  vendee  never  had  title  to  the 
land  contracted  to  be  sold,  or  where  he 
has  conveyed  the  same  subsequent  to  the 
making  the  contract,  so  that  he  lias  not 
the  power  specifically  to  perform  the 
same,  and  that  fact  is  known  to  the  ven- 
dee, the  latter  cannot  file  a  bill  in  equity 
for  the  mere  purpose  of  obtaining  com- 
pensation in  damages." 


250  LAW    OF   VENDORS    AND   PURCHASERS.  [CHAP.    XIV. 

4.  Where  a  party  agrees  to  convey  land,  upon  performance  by 
the  purchaser  of  certain  conditions,  and  designedly  incapacitates 
himself  to  convey,  the  purchaser  is  discharged  from  the  condi- 
tions.^  So  a  vendee  may  bring  an  action  for  breach  of  the  con- 
tract to  convey,  before  demanding  a  deed,  if  the  vendor,  by  his 
conduct,  indicates  that  he  does  not  intend  to  perform  his  covenant.^ 
So  the  vendee  may  rescind  the  contract,  if  the  vendor  is  unable  to 
fulfil  it,  without  a  tender  of  the  purchase-money.^  And,  if  a  party 
who  has  agreed  to  sell  an  estate  is  afterwards  disabled  from  doing 
so,  the  vendee  may  recover  the  money  deposited,  with  interest,  in 
an  action  for  money  had  and  received,  although  the  contract  for 
the  sale  be  under  seal.*  So  a  contract,  that  one  party  shall  remain 
with  the  other  and  carry  on  his  farm  until  the  decease  of  the  latter, 
and  shall  then  receive  the  farm  in  compensation  of  his  services,  is 
broken  by  a  sale  of  the  farm,  or  a  part  of  it,  by  the  owner,  although 
for  the  purpose  of  paying  an  antecedent  debt ;  and,  the  special  con- 
tract being  at  an  end,  the  party  who  has  rendered  the  service  may 
recover  the  value  of  it  in  an  action  upon  the  common  counts.-^  In 
a  late  case,^  Scates,  C.J.,  says  (p.  493)  :  "  The  instruction  refused, 
we  think  misconceived  the  nature  of  this  action.  It  seems  to  be 
predicated  upon  the  idea  that  the  suit  is  in  the  nature  of  an  action 
for  a  specific  performance,  and,  consequently,  to  entitle  himself  to 
a  recovery,  defendant  must  show  performance  of  precedent  condi- 
tions. But  the  suit  is  to  recover  back  the  consideration  paid,  on  a 
breach  of  the  contract  by  plaintiff  by  selling  and  conveying  the 
land  to  another.  Plaintiff  has  put  it  out  of  his  power  to  perform, 
by  sale  to  another.  Yet  the  principle  he  contends  for  would  lead 
to  this  injustice  and  hardship,  that  had  there  been  two  instalments 
due,  as  precedent  conditions  to  a  conveyance,  and,  after  the  payment 
of  the  first,  he  should  sell  the  land  to  another,  and  so  rescind  the 
contract  on  his  part,  yet  the  other  party  could  not  treat  it  as  re- 
scinded, and  sue  for  his  payment  back  again,  without  first  paying 
the  second  instalment,  and  thereby  adding  to  the  amount  of  his 
damage,  injury,  and  the  amount  he  would  be  entitled  to  recover. 
Were  defendant  relying  for  rescission  upon  the  simple  non-compli- 
ance of  plaintiff,  it  might  be  necessary  to  establish  his  right  to  re- 

1  Miller  v.  Whittier,  32  Maine,  203.  Ca.  113;  Judson  v.  Wass,  11  Johns.  525. 

2  Gray  v.  Dougherty,  25  Cal.  266.  16  111.  4U2. 

3  Runkle  v.  Johnson,  30  111.  328.  ^  Canada  r.  Canada,  6  Cush.  15. 
*  GreviUe  v.  Da  Costa,  Peake's  Add.         «  Hurd  v.  Denny,  16  III.  492. 


CHAP.    XIV.]  TITLE    OF   THE   VENDOR,   ETC.  251 

scind,  by  showing  performance,  or  an  offer  to  perform."  The 
Court  proceed  to  allow  interest,  upon  the  ground,  that,  "  when 
the  money  was  paid,  it  was  intended  to  be  paid  in  good  faith,  on 
the  land;  but,  without  apprising  defendant  of  the  fact,  plaintiff 
resold  the  land,  and  concealed  the  fact  from  defendant's  knowl- 
edge, until  called  on  for  a  deed." 

o.  We  have  already  (ch.  11)  considered  the  question  of  timey 
as  bearing  upon  the  respective  rights  and  liabilities  of  vendor  and 
vendee.  As  has  been  stated,  time  is  generally  treated  as  of  the 
essence  of  the  contract.  Thus,  if  the  vendor  of  an  estate  by  auc- 
tion does  not  show  a  clear  title  by  the  day  specified,  the  purchaser 
may  immediately  recover  back  his  deposit,  and  rescind  the  con- 
tract.^  So  where  it  was  an  objection  to  a  title,  that  it  was  doubtful 
whether  the  wife  of  a  party  to  a  deed  thirty  years  old  was  barred 
by  that  deed  of  her  dower  ;  it  was  not  answered  by  proving  at  the 
trial  that  she  was  then  dead,  such  proof  not  having  been  before 
given.2  So,  it  being  necessary,  in  order  to  make  a  title  perfect, 
that  a  recovery  should  be  suffered,  for  the  purpose  of  barring  an 
old  estate  tail,  vested  in  one  not  a  trustee  for  the  vendor ;  the 
deed  making  the  tenant  to  the  prtecipe,  and  the  warrant  for  suffer- 
ing the  recovery,  were  executed  before  the  filing  of  the  bill  for 
specific  performance,  but  the  recovery  was  not  completed  till  a  few 
days  afterwards.  Held,  a  good  title  was  not  shown  before  com- 
mencement of  suit.^  So  A.,  being  entitled,  under  his  marriage 
settlement,  to  a  life  interest  in  certain  freehold  estates,  remahider 
to  the  use  of  trustees  for  a  term  of  one  thousand  years,  to  secure  a 
jointure  and  portions,  remainder  to  himself  in  fee,  conveyed  part 
of  the  lands  to  B.  in  fee,  in  exchange  for  other  lands.  B.'s  heir 
having  afterwards  contracted  for  the  sale  of  the  land,  the  purchaser 
refused  to  complete  the  contract,  on  the  ground  that  A,  had  no 
power  to  exchange  the  lands  in  fee.  The  vendor  then  procured 
the  execution  of  certain  deeds,  with  a  view  of  bringing  the  ex- 
change within  the  terms  of  a  power  of  sale  and  exchange,  given  to 
the  trustees  under  the  settlement.  Held,  under  these  circum- 
stances, and  likewise  on  the  ground  that  the  after-executed  deeds 
were  grossly  inaccurate,  the  purchaser  was  not  bound  specifically 
to  perform  the  agreement.* 

1  Wilde  I'.  Forte,  4  Taunt.  33-1.  4  Cowgill  v.  Lord  Oxmantown,  3  You. 

2  Ibid.  &  CoU.  377. 

3  Lewin  v.  Guest,  1  Russ.  325.' 


252  LAW   OF   VENDORS    AND   PURCHASERS.  [CHAP.    XIV. 

6.  But  on  the  other  hand  it  has  been  held,  that  the  purchaser 
cannot  avoid  the  sale  upon  the  ground  of  want  of  title  at  the  time, 
provided  the  vendor  reasonably  satisfies  his  contract  in  this  re- 
spect. The  Court  will  not  annul  a  sale  for  want  of  title,  without 
giving  the  vendor  a  reasonable  opportunity,  in  point  of  time,  to 
make  an  imperfect  title  sufficient.  Thus,  if  the  vendor  be  willing, 
ready,  and  able  to  make  title  at  the  time  when  he  has  contracted 
so  to  do,  it  is  immaterial  that  he  had  no  title  at  the  date  of  his 
contract,  especially  where  the  vendee,  at  both  periods,  has  notice 
of  the  facts  of  the  case.^  So  where  a  vendor,  who  has  covenanted 
to  make  a  good  title  upon  payment  of  the  balance  of  the  purchase- 
money,  sues  for  such  balance,  and,  being  called  upon  to  make  good 
his  covenant,  presents  a  title  which  is  defective  in  some  particu- 
lars ;  if  the  vendee  has  not  been  compromitted  to  the  acceptance 
of  such  title,  the  Court  should  allow  to  the  vendor  a  certain  time 
within  which  to  jDcrfect  the  title,  the  collection  of  the  money  to 
be  suspended  in  the  mean  time,  and,  if  it  shall  be  out  of  his  power 
to  perfect  the  title,  then  the  vendee  should  be  required  to 
accept  the  vendor's  deed  with  warranty,  or  to  restore  the  pre- 
mises, and  equitably  account  for  the  rents  and  profits.'^  So  where 
one  agrees  to  sell  an  estate,  a  small  portion  of  which  turns  out 
to  be  the  property  of  another  person  ;  the  Court  will  not  dis- 
charge the  purchaser  from  his  contract,  without  giving  the  vendor 
an  opportunity  of  acquiring  a  title  to  that  portion.^  So  where,  by 
the  terms  of  a  sale,  the  vendee  was  entitled  to  immediate  posses- 
sion, the  first  payment  to  be  made  in  part,  by  his  obtaining  an 
assignment  of  a  judgment  against  the  vendor,  after  which  the  deed 
was  to  be  given,  the  judgment  cancelled,  and  the  residue  of  the 
first  instalment  paid  ;  held,  the  vendor  was  entitled  to  a  reasona- 
ble time,  after  notice  of  objections  to  his  title,  to  clear  off  the  in- 
cumbrances, and  procure  the  necessary  certificate  that  the  property 
was  unincumbered.  Also,  that  three  weeks  was  not  an  unreason- 
able time.^  So,  though  equity  will  not  compel  a  purchaser  to  take 
a  title  substantially  defective,  yet  it  is  the  privilege  of  the  vendor 
to  complete  his  title,  at  any  time  before  a  decree,  provided  there 
has  been  no  unnecessary  delay ;  and,  if  the  purchaser  forestalls 

1  Tison   V.    Smith,  8   Tex.   147 ;    ace.  '^  Jones  v.  Taylor,  7  Tex.  240. 

Webb  V.  Austin,  7  M.  &  G.  701 ;  Stowell  3  Chamberlain  v.  Lee,  10  Sim.  445. 

V.  Kobinson,  5  Scott,  196.     See  Shaw  v.  *  More  v.  Suiedburgh,  8  Paige,  UOO. 
Rowley,  16  M.  &  W.  810. 


CHAP.   XIV.] 


TITLE    OF    THE    VENDOR,    ETC. 


253 


him,  and  perfects  tlie  title  liiinself,  he  is  not  entitled  to  rescind,  but 
cau  claim  only  the  expenses  of  removing  the  defect.^  So  A.  pur- 
chased land  from  B.,  and  gave  his  bond  for  the  purchase-money. 
Afterwards,  supposing  the  title  to  be  defective,  A.  procured  a  con- 
veyance from  C,  the  original  owner,  under  whom  B.  claimed,  B. 
having  refused  to  procure  such  conveyance  himself.  Held,  al- 
though A.  might  have  claimed  to  have  the  contract  rescinded  before 
his  purchase  from  C,  he  could  now  only  claim  to  be  reimbursed 
what  it  had  cost  him  to  perfect  the  title.2(a) 

7.  Greater  vigilance  is  required  of  the  vendor,  in  perfecting 
the  title  to  the  purchaser,  where  the  latter  is  not  in  possession 
under  the  contract.  But  where  a  day  is  fixed  for  the  conveyance, 
the  vendee  must  give  notice  of  any  objections  to  the  title  a  reason- 
able time  previous  to  the  day,  that  the  vendor  may  remove  them 
and  convey  at  the  time  ;  or  equity  may  consider  a  strict  perform- 
ance by  a  conveyance  on  the  day  as  waived.     And,  where  the  ven- 


1  Westall  V.  Austin,  5  Ired.  Eq.  1. 


2  Kindley  v.  Gray,  G  Ired.  Eq.  445. 


{a)  A  party  holding  a  bond  for  title  to 
three-sixteenths  of  a  tract  of  land,  condi- 
tioned that,  if  certain  ore  upon  the  premises 
should  prove  to  be  good  silver  ore,  he 
was  to  pay  a  specified  sum,  and,  if  not,  tlie 
sale  to  be  void,  sold  one-sixteenth  abso- 
lutely, the  grantee  knowing  the  terms  of 
the  grantor's  purchase,  and  the  grantor 
being  guilty  of  no  fraud  or  misrepresenta- 
tion. Held,  the  latter  sale  was  valid,  and 
the  grantor  was  entitled  to  a  reasonable 
time  in  which  to  perfect  his  title.  Reeves 
V.  Dickey,  10  Gratt.  138. 

Wliere  a  title-bond  binds  the  obligor 
to  convey  a  certain  quantity  of  land  in 
one,  two,  or  three  surveys,  as  the  obligee 
may  choose,  the  former  is  not  bound  to 
convey,  until  tiie  latter  has  made  his  se- 
lection, and  had  the  land  surveyed.  And, 
there  being  a  latent  ambiguity  in  the  de- 
scription of  the  land  sold,  which  can  only 
be  cleared  up  by  an  actual  survey,  it  is 
error  to  decree  a  rescission  of  the  contract 
until  a  survey  has  been  made,  so  as  to 
enable  the  Court  to  decide  whether  the 
obligor  can  comply  with  his  contract  or 
not.     Purcell  v.  McCleary,  10  Gratt.  246. 

The  same  favorable  principle  in  re- 
gard to  the  rights  of  a  vendor  has  been 
adopted  with  reference  to  the  title-deeds. 
Agreement  on  tlie  sale  of  an  estate,  that 
the  title-deeds  should  be  delivered  to 
the  purchaser  on  the  completion  of  the 
contract ;  but,  as  the  deeds  related  also  to 
other  property  belonging  to  the  vendors, 


the  purchasers  should  enter  into,  or  pro- 
cure to  be  entered  into,  one  or  more 
proper  and  sufficient  covenant  or  cove- 
nants with  the  vendors  for  the  production 
and  delivery  of  copies  of  such  deeds.  The 
purchasers  were  trustees,  and  entered 
into  the  contract  in  pursuance  of  the  di- 
rections in  the  will  of  their  testator,  for 
the  investment  of  his  personal  estate  in 
the  purchase  of  lands,  to  be  settled  to  cer- 
tain uses  creating  estates  for  life,  with 
remainder  over  in  strict  settlement.  The 
estate  was  conveyed  by  tlie  vendors  to 
the  purchasers  to  the  uses  declared  by 
the  will  of  their  testator.  Held,  that  the 
agreement,  to  enter  into  a  proper  and  suf- 
ficient covenant  for  the  production  of  the 
deeds,  did  not  mean  that  the  vendors 
should  be  entitled  to  a  covenant  which 
would  secure  to  them  their  production  at 
all  times  and  under  all  circumstances ; 
that  the  words  sufficient  and  proper  were 
to  be  construed  together ;  that  the  mode 
of  taking  tlie  conveyance  must  in  a  great 
degree  determine  the  meaning  and  suffi- 
ciency of  the  covenant ;  that  tlie  releasees 
to  uses,  like  trustees,  would  ordinarily  be 
required  to  covenant  only  ibr  their  own 
acts  ;  and  the  Court  would  not  require 
the  purchasers,  being  such  releasees,  to 
covenant  as  demanded,  especially  after 
the  uses  were  executed  by  the  statute. 
Onslow  V.  Londesborough,  17  Eng.  Law 
&  Eq.  542. 


254  LAW    OP   VENDORS    AND    PURCHASERS.  [CHAP.    XIV. 

dor  has  not  been  guilty  of  gross  negligence  in  perfecting  bis  title, 
equity  may  decree  a  specific  performance,  upon  a  bill  filed  by  him, 
although  the  title  was  not  perfected  on  the  specified  day  ;  unless 
the  time  is  expressly  made  an  essential  part  of  the  agreement.^ 

8.  So,  as  has  been  seen  (ch.  11),  it  has  been  often  held  in 
equity  to  be  a  sufficient  compliance  with  the  contract,  if  a  party 
can  make  a  good  title  in  a  bill  for  specific  performance,  at  any 
time  before  the  final  decree.^  So  where  the  vendor  declines  exe- 
cuting the  contract,  upon  the  ground  that  he  is  unable  to  give  a 
good  title,  and  the  purchaser  files  his  bill  to  compel  the  defendant 
to  complete  the  contract,  or  rescind  it ;  if  the  defendant  is  able  to 
give  a  good  title  at  the  time  of  the  decree,  the  complainant  will  be 
compelled  to  accept  it.  But  the  defendant  will  be  decreed  to  pay 
interest  upon  the  purchase-money,  from  the  time  a  conveyance  was 
demanded.3  So  the  plaintiff,  in  a  bill  for  specific  performance, 
more  especially  where  time  is  not  material,  and  there  has  been  no 
unreasonable  delay,  is  entitled  to  a  decree,  if,  at  the  hearing,  he 
can  show  a  good  title,  although  he  had  not  such  title  at  the  time 
of  the  contract,  or  the  commencement  of  suit.  Otherwise,  if  the 
defendant  retired  from  the  contract  as  soon  as  the  want  of  title  was 
discovered.^  So,  though  a  vendor  cannot  come  at  any  distance  of 
time  for  a  performance,  yet,  where  a  bill  was  filed  fourteen  months 
after  the  correspondence  upon  the  objections  to  the  title  ceased,  by 
the  defendant's  returning  no  answer  to  the  last  letter,  by  calling 
for  a  distinct  answer,  and  threatening  a  bill,  and  the  auctioneer  had 
not  been  called  on  to  return  the  deposit,  it  was  referred  to  the  Mas- 
ter.^ So,  though  a  covenant  to  execute  and  deliver  a  good  and 
sufficient  deed  means  an  operative  conveyance,  or  one  that  transfers  a 
good  and  sufficient  title,  not  a  title  admitted  to  be  doubtful ;  yet 
a  title  at  the  time  of  the  decree,  or  the  coming  in  of  the  Master's 
report,  is  sufficient ;  and  the  party  may  be  allowed  then  to  per- 
form his  contract,  and  save  the  forfeiture  of  his  bond,  on  making 
compensation  for  the  delay.  The  rule  of  compensation  is  the 
amount  of  the  interest  on  the  bond,  from  its  date  to  the  time  of 
final  decree.^  Thus  in  case  of  a  bill  for  specific  performance,  the 
plaintiff,  claiming  through  an  alien,  contracted  to  sell  the  estate, 

1  More  V.  Sniedburgh,  8  Paige,  600.  *  Hoggart  v.    Scott,  1   Kuss.  &   Myl. 

2  Bennett,  &c.  v.  Carey,  3  Bro.  390.  293 ;  Wynn  v.  Morgan,  7  Ves.  202. 

3  Pierce  v.  Nichols,  1  Paige,  244.  ^  Hertford  v.  Boore,  5  Ves.  719. 

*>  Clute  V.  Robison,  2  Johns.  595. 


CHAP.    XIV.] 


TITLE    OF   THE   VENDOR,   ETC 


255 


having  for  this  reason  no  legal  or  equitable  title  to  it.  The  pur- 
chaser by  his  own  inquiries  ascertained  the  defect,  but  did  not  till 
after  some  months  of  negotiation  with  tlie  plaintiff  repudiate  the 
contract.  Pending  the  investigation  of  the  title  in  the  Master's 
office,  the  plaintiff  obtained  a  grant  of  the  estate  from  the  Crown. 
Held,  he  was  entitled  to  a  decrce.^(a) 

9.  Though  equity  will  decree  specific  performance  of  a  sale 
of  land,  if  the  vendor  is  able  to  make  a  good  title  at  any  time 
before  decree ;  the  dismission  of  the  bill  is  a  bar  to  a  new  bill  for 
the  same  object.  But  the  inability  of  the  vendor  to  make  a  good 
title  at  the  time  of  decree,  though  ground  for  refusing  a  specific 
performance,  will  not  authorize  a  Court  of  Equity  to  rescind  the 
agreement,  where  the  parties  have  an  adequate  remedy  at  law  for 
its  breach. 2 

10.  Where  a  purchaser,  having  discovered  a  technical  defect  in 


1  Eyston  v.  Simonds,  1  You.  &  Coll. 
C.C.  608. 


'^  Hepburn  v.  Dunlap,  1  Wheat.  179. 


(a)  Bill  for  a  sale  of  land  to  pay  the 
purchase-money.  Defence,  a  cloud  on  the 
title.  By  delay  in  bringing  the  cause  to  a 
hearing,  partly  througli  fault  of  the  ven- 
dee ;  the  lapse  of  time,  and  possession 
without  disturbance  or  interruption,  qui- 
eted the  title.  The  defect  being  thus 
cured,  a  sale  was  decreed,  but  with  costs 
to  the  purchaser.  Peers  v.  Barnett,  12 
Gratt.  410.  Allen,  J.,  says  (p.  415)  :  "  A 
distinction  seems  to  have  been  taken  by 
some  of  the  reported  cases,  as  to  the  re- 
lief a  Court  of  Equity  will  extend  to  a 
vendee  who  has  accepted  his  deed  with 
covenants  of  general  warranty,  where  he 
seeks  to  enjoin  a  judgment  for  the  col- 
lection of  the  purchase-money,  and  the 
case  where  the  vendor,  instead  of  pro- 
ceeding against  the  vendee  personally,  is 
attempting  to  sell  the  land  under  a  deed  of 
trust  or  by  a  bill  in  equity  ;  that  although 
the  facts  may  not  authorize  the  Court  to 
enjoin  the  collection  of  the  purchase- 
money  by  a  proceeding  against  the  vendee 
at  law,  yet,  as  a  Court  of  Equity  repro- 
bates a  sale  of  land  when  clouds  are  hang- 
ing over  the  title,  it  will,  for  the  benefit  of 
the  parties,  and  the  security  of  the  pur- 
chaser at  any  sale  of  the  subject,  enjoin  or 
refuse  to  decree  a  sale  of  the  land  until 
the  title  is  cleared  up.  The  case  of  Beall 
V.  Lively,  8  Leigh,  658,  is  a  case  of  the 
first  class.  It  was  there  decided  that 
where  a  vendee  is  in  possession  of  land 
under  a  conveyance  with  general  war- 
ranty, and  the  title  has   not  been  ques- 


tioned by  any  suit  prosecuted  or  threat- 
ened, such  vendee  has  no  claim  to  relief 
in  equity  against  the  payment  of  the  pur- 
chase-money, unless  he  can  show  a  defect 
of  title  respecting  whicii  the  vendor  was 
guilty  of  fraudulent  concealment  or  mis- 
representation, and  which  the  vendee  had 
at  the  time  no.  means  of  discovering.  In 
Ralston  v.  Miller,  3  Rand.  44 ;  Roger  v. 
Lane,  5  Leigh,  606  ;  Clark  v.  Ilardgrove, 
7  Gratt.  3U9,  this  Court  has  extended  the 
relief  to  cases  where  the  vendee,  placing 
himself  in  the  position  of  the  superior 
claimant,  can  show  clearly  tliat  tlie  title 
is  defective.  The  principle  that  a  Court 
will  not  sell  or  permit  a  sale  of  land  with 
a  cloud  hanging  over  the  title,  is  affirmed 
in  Lane  c.  Tidhall,  Gihn.  loO;  Gay  v. 
Hancock,  1  Rand.  72;  Miller  v.  Argyle, 
5  Leigh,  460." 

Upon  a  bill  for  specific  performance 
against  a  purchaser  in  possession,  by  de- 
cree directing  an  inquiry  as  to  title,  he 
was  ordered  to  pay  into  court  the  interest 
on  his  purchase-money,  whicli  was  also 
declared  to  be  a  lien  ;  but  tlie  certificate 
was,  that  the  plaintirt"  could  not  show  a 
good  title.  It  ajipearing,  howevi'r,  that 
since  the  purchase  the  (lelL'iidant  had  him- 
self acquired  the  means  of  perfecting  the 
title ;  held,  the  bill  should  not  be  dis- 
missed, but  leave  siiouid  l)e  granted  to 
amend,  or  file  a  supplemental  bill.  Hume 
V.  Pocock,  Law  Rep.  (I'^ng.)  Eq.,  April, 
1866,  p.  662. 


256  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XIV. 

the  title,  abandons  it,  and  files  a  bill  to  enjoin  collection  of  the 
price,  and  the  vendor  then  supplies  such  defect,  the  vendee  is 
bound  to  complete  the  purchase.^ 

11.  When  performance  of  a  contract  of  purchase  is  resisted, 
upon  grounds  wholly  independent  of  the  title,  and  the  objections 
are  overruled,  or  when  the  purchaser,  although  doubtful  of  the 
title,  consents  by  his  answer  to  accept  it,  if  in  the  judgment  of  the 
Court  it  can  be  rendered  valid  ;  it  is  sufficient  to  warrant  a  decree 
for  specific  performance,  that  a  good  title  can  be  made  within  a 
reasonable  time  before  the  final  decree.  But  when  the  purchaser 
rejected  the  title  offered,  as  insufficient,  and  upon  that  ground  re- 
fused and  still  refuses  to  complete  the  contract,  the  entire  contro- 
versy turns  upon  the  validity  of  the  objections,  and,  if  they  are 
sufficient,  the  Court  will  not  decree  specific  performance.^ 

12.  In  general,  although  a  vendee  may  require  a  good  and 
satisfactory  title  to  the  estate  sold,  yet  by  his  own  conduct -he  may 
waive  his  rights  in  this  respect.  Thus  a  purchaser  buying  with 
full  knowledge  of  a  defect  in  the  title  will  not,  for  that  defect,  be 
permitted  to  come  into  equity  for  relief.^  So  the  Court  will  not 
set  aside  the  purchase  of  a  house  and  lot,  on  the  allegation  of  an 
imperfect  or  incumbered  title,  not  clearly  shown  to  be  so,  after  long 
possession  by  the  purchaser,  and  a  confession  of  judgment  for  the 
purchase-money.  Such  conduct  amounts  to  a  waiver  of  objections, 
though  the  Court  might  give  some  relief,  ultimately,  if  the  title 
turned  out  to  be  bad.  The  vendor  having  enforced  the  judgment, 
and  bought  in  the  property  at  a  very  low  rate,  but  offering  to  re- 
scind the  sale  on  payment  of  the  debt,  the  Court  decreed  accord- 
ingly.* So  although  a  complainant  who  seeks  specific  performance 
of  a  sale,  but  has  not  performed  his  part  of  the  contract,  is  not 
entitled  to  a  decree,  especially  if  any  injury  has  resulted  to  the 
defendant ;  if  the  defendant  has  taken  possession,  paid  part  of  the 
purchase-money,  and  executed  the  agreement  in  part,  the  Court 
will  consider  him  as  having  waived  his  objections,  and  will  decree 
the  execution  of  the  agreement.  It  will,  however,  extend  the  time 
of  payment,  vary  the  security  to  be  given,  and  regulate  the  pay- 
ment of  interest,  according  to  the  justice  of  the  case.^  So  a  pur- 
chaser, in  possession  under  an  agreement,  having  exercised  acts  of 

1  Mays  V.  Swope,  8  Gratt.  46.  *  Roach  v.  Rutherford,  4  Desaus.  126  ; 

2  Dominick  v.  Michael,  4  Sandf.  374.       Fludyer  v.  Cocker,  12  Ves.  27. 

3  Craddock  v.  Shirly,  3  Marsh.  1139.  5  Ramsay  v.  Brailsford,  2  Desaus.  582. 


CHAP.    XIV.] 


TITLE    OF    THE    VENDOR.    ETC. 


257 


ownership,  but  ol)iecting  to  tlic  title,  was  ordered  to  i)ay  in  the 
purchase-money  ;  and  slighter  acts  of  ownership  were  held  suHi- 
cient,  if  subsequent  to  a  discovery  of  an  objection  to  the  title. ^  ^o 
where  the  vendee  has  entered  into  possession,  if  he  wishes  to  re- 
scind the  contract,  on  the  ground  that  the  vendor  has  not  perfected 
his  title,  and  executed  a  conveyance  within  a  reasonable  time,  or 
at  the  time  specified,  he  must  give  up  the  possession.^  So  if  a 
purchaser,  after  delivery  of  the  abstract,  on  the  face  of  which  part 
of  the  estate  appears  to  be  subject  to  a  right  of  sporting,  not  men- 
tioned in  the  particulars  of  sale,  enters  into  possession,  he  waives 
that  objection,  notwithstanding  a  subsequent  offer  of  compensa- 
tion made  by  a  clerk  of  the  vendor's  solicitor,  without  express 
authority,'^(a) 


1  Dixon  v.  Astley,  1  Mer.  138. 

2  More  V.  Sniedburgh,  8  Paige,  600. 

(a)  The  defendant  agreed  in  writing  to 
sell  and  convey  land  to  the  phuntifl',  who 
entered,  paid  part  of  tlie  price,  and  after- 
wards demanded  a  deed,  and  ottered  to 
pay  the  balance.  Tlie  defendant  was  un- 
able to  make  a  good  title,  and  tlie  plain- 
tiff brings  this  action,  for  money  had  and 
received,  to  recover  the  sum  paid  ;  but 
still  retaining  possession.  Held,  the 
action  did  not  lie.  Hurst  v.  Means,  2 
Swan,  594.  The  Court  say  (p.  5'J8), 
"  The  rule  on  this  subject  is  stated  in 
Clarke  v.  Locke,  11  Humph.  R.  300.  If 
the  vendor,  on  a  proper  demand  made, 
refuse  or  be  unable  to  execute  his  contract, 
the  vendee  may  bring  his  action  thereon 
for  the  recovery  of  damages,  thereby 
affirming  the  contract,  or,  at  Ins  election, 
may  disaffirm  the  contract  ab  initio,  and 
sue  for  money  had  and  received  to  his 
use.  The  vendee  has  elected  to  disaffirm 
tlie  contract.  Do  the  facts  amount  to  a 
disaffirmance  and  rescission  of  tiie  con- 
tract ?  We  are  of  opinion  that  they 
do  not.  It  is  a  valid  contract  in  writing, 
and  was  in  part  executed  by  the  vendor ; 
for  he  placed  the  vendee  in  possession 
under  it.  Tliis  possession  lias  not  been 
restored,  but  continued  in  tlie  vendee  at 
the  time  this  suit  was  instituted.  The 
vendee  pretends  to  disaffirm  and  rescind 
the  contract,  and  yet  holds  the  possession, 
a  benefit  under  it.  It  is  in  tiiis  respect 
that  tlie  contract  is  not  rescinded  ;  and 
the  action  can  only  be  maintained  ujjon 
its  absolute  and  total  rescission.  It  would 
be  unreasonable  and  unjust  to  permit  a 
purchaser  to  retain  the  possession  and 
use  of  the  thing  purchased,  and  yet  to 
recover  back  the  consideration  as  for  a 


3  Burnell  v.  Brown,  1  Jac.  and  Walk. 
168. 

defect  of  title.  The  action  for  money  liad 
and  received  is,  in  its  nature,  equitable ; 
and  it  cannot  be  maintained  upon  a  prin- 
ciple so  unequal  and  unjust.  When  a 
contract  is  properly  rescinded,  the  parties 
are  placed  in  statu  quo.  Where,  however, 
the  contract  is  void  in  itself,  no  act  ot' 
rescission  is  necessary  in  order  to  main- 
tain the  action  for  money  had  and  received 
upon  it.  No  right  or  duty  can  be  predi- 
cated upon  a  void  contract.  It  is  tiie 
same  as  if  it  had  not  been  made.  Tliere- 
fore,  if  a  par-ty  enter  upon  land  and  i)ay 
money  under  a  parol  contract,  for  its  jnir- 
chase,  he  may  recover  it  back,  by  action 
for  money  had  and  received  for  his  use, 
without  restoring  the  possession  or  doing 
other  acts  to  rescind  the  contract ;  for  the 
contract  never  had  a  legal  existence,  and, 
of  course,  no  action  could  be  maintaineil 
upon  it.  Walker  v.  Constable,  1  H.  >.^  V. 
306 ;  Beckerman  v.  Ivuykendol,  6  Blackf. 
R.  22  ;  Pipkin  v.  James,  1  Ilumph.  R. 
325." 

Conditions  of  sale  stipulated  that  tlie 
sale  should  be  completed  on  a  certain  day  ; 
that  objections  to  the  title,  not  made 
within  twenty -one  days  from  delivery 
of  the  abstract,  should  be  considered  as 
waived ;  and  that,  if  the  purchaser  should 
not  comply  with  the  conditions,  his  de- 
posit should  be  forfeited,  and  the  vendor 
at  liberty  to  resell.  The  purciiaser  did 
not  deliver  his  objections  until  several 
weeks  after  the  twenty-one  days,  and 
after  the  day  ajipointed  for  completing  tiie 
purchase ;  the  vendor's  solicitor,  iiowever, 
received  them,  and  entered  into  a  long 
correspondence  with  the  purchaser  re- 
specting them,  but  without  coming  to  a 


17 


258 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XIV. 


13.  The  rule  above  stated,  however,  will  not  be  adopted  in  all 
cases.  Thus  a  purchaser  was  held  entitled- to  an  investigation  of 
the  title,  notwithstanding  possession  taken,  acts  of  ownership  inci- 


satisfactory  conclusion.  Finally  the  ven- 
dor resold  the  property,  at  a  less  price, 
notwithstanding  the  purchaser's  protest, 
and  gave  notice  of  his  intention  to  file  a 
bill  to  enforce  the  contract.  About  six 
months  afterwards  he  filed  his  bill  against 
the  vendor,  the  auctioneer,  and  the  second 
purchaser,  to  whom  he  had  some  months 
before  given  notice  of  his  prior  contract. 
Held,  the  conditions  had  been  waived  by 
the  vendor's  solicitor,  and  the  Court  de- 
creed a  specific  performance  by  the  vendor, 
with  a  reference  to  the  iNIaster  as  to  title, 
dismissed  the  bill  with  costs  as  against 
the  auctioneer,  who  denied  that  he  had 
ever  intended  to  part  with  the  deposit, 
and  without  costs  as  against  the  second 
purchaser,  who  claimed  the  benefit  of  his 
contract,  if  the  Court  should  think  that 
the  plaintiff's  ought  not  to  be  performed. 
Cutts  V.  Tliodey,"l3  Sim.  200. 

r  The  defendant,  a  purchaser,  was  eight 
years  in  possession  ot"  jjremises,  to  which 
the  vendor  was  unable  to  make  a  good 
title  ;  and  refused  either  to  iibandon  the 
agreement,  or  accept  such  title  as  the  ven- 
dor could  give,  but  paid  no  purchase- 
money  or  rent.  Upon  a  bill  filed  by  the 
vendor  for  relief,  the  Court  directed  the 
agreement  to  be  delivered  up  to  be  can- 
celled, and  the  rents  and  profits  accounted 
for,  and  ordered  the  purchaser  to  pay  the 
costs.     King  V.  King,  1  Myl.  &  Kee.  442. 

Written  agreement  to  buy  a  farm  at 
•$60  per  acre,  stilting  that  it  contained 
ninety-six  acres,  more  or  less.  The  sub- 
sequent deed  used  the  same  terms,  and 
security  was  given  for  the  price  at  $60 
for  ninety-six  acr&s.  There  were  in  fiict 
but  eighty-six  acres.  Held,  tiie  whole 
price  might  he  recovered.  Faure  v.  Mar- 
tin, 3  Seld.  210. 

Agreement,  to  sell  the  two  leases  and 
good-will  in  trade  of  a  public  house,  and 
shop  adjoining,  for  tlie  sum  of  £4,2-30, 
"  as  he  holds  the  same,"  for  terms  of 
twenty -eight  years  from  midsummer  next 
ensuing,  at  the  annual  rent  therein  men- 
tioned. The  purchaser  agreed  to  accept 
a  proper  assignment  of  the  said  leases  and 
premises  as  above  described,  without  re- 
quiring the  lessor's  title ;  and,  upon  pay- 
ment of  said  sum,  the  vendor  agreed  to 
execute  an  effectual  assignment  of  the 
leases,  and  deliver  possession  of  all  the 
said  premises.  Held,  the  vendee  was 
bound  to  purchase  the  two  leases,  without 
inquiring  into  the  title  of  the  lessor,  and 
could  not  refuse  to  complete  his  purchase 


on  account  of  an  objection  to  that  title. 
Spratt  V.  Jeflfery,  10  Barn.  &  Cress.  249. 

A  condition  of  sale  was,  that,  in  case 
the  purchaser  should  raise  objections  to 
the  title,  which  the  vendor  should  not  be 
able  or  willing  to  remove,  the  vendor 
migiit  rescind  the  contract,  on  notice,  and 
repayment  of  the  deposit;  objections  not 
delivered  within  fourteen  days  after  deliv- 
ery of  the  abstract  to  be  treated  as  waived, 
in  whicii  respect  time  was  to  be  essen- 
tial. The  purchaser  returned  the  ab- 
sti'act,  with  queries,  within  the  fourteen 
days,  and  the  vendor  answered  the  que- 
ries ;  the  pinx'haser  on  the  same  day 
objected  to  the  answers ;  the  correspond- 
ence on  the  subject  continued  for  several 
weeks,  and  then  the  vendor  gave  notice 
that  he  rescinded  the  contract.  Held,  the 
continuance  of  the  treaty  for  completion 
of  the  title,  after  the  first  objection  of  the 
purchaser,  was  a  waiver  of  the  condition 
as  to  the  rescinding  ;  that  such  a  condition 
of  sale  ought  to  be  discouraged,  and  not 
to  .receive  a  construction  oppressive  on  the 
purciiaser ;  that  the  vendor's  right  to  re- 
scind must  be  co-extensive  with  the  pur- 
chaser's right  to  object  to  the  title;  under 
the  same  condition  ;  that  the  vendor  was 
only  bound  bonujide  to  deliver  an  abstract 
of  such  title  as  he  had  at  the  time  of  de- 
livering it ;  and,  so  long  as  the  condition 
remained  in  force,  was  not  bound  to 
deliver  any  supplemental  abstract  of  title 
afterwards  acquired.  It  was  doubted, 
whether  the  benefit  of  the  condition  would 
not  in  equity  be  forfeited  by  a  vendor'who 
designedly  delivered  an  imperfect  abstract 
of  the  title  which  he  had  at  the  time  of 
delivering  it.  Morley  v.  Cook,  2  Hare, 
106.  So  where  land  liad  been  purchased 
under  a  decree  in  a  creditor's  suit,  the 
Court,  on  the  application  of  a  creditor, 
who  had  for  four  years  acquiesced  in  the 
purchase,  and  who  was  not  supported  in  his 
objections  by  the  other  creditors,  refused  to 
set  aside  the  purchase,  on  the  ground  of 
misdescription  of'tiie  land  in  the  particulars 
of  sale.  VricQ  v.  North,  2  You.  &  Coll.  620. 
So  specific  performance  will  be  decreed 
against  a  purciiaser,  without  reference  as 
to  the  title,  upon  possession,  and  no  ob- 
jection made  to  tlie  ahstmrt.  Fleetwood  v. 
Green,  15  Ves.  504.  So,  upon  possession, 
a  correspondence,  and  no  oiyection  to  the 
title  till  two  years  after  delivery  of  the 
abstract.  Margravine,  &c.  v.  Noel,  1 
Madd.  310.  So  a  purchaser,  after  long 
possession    and  vexatious    objections   to 


CHAP.    XIV.]  TITLE    OF   THE   VENDOR,    ETC.  259 

dent  to  possession,  and  preparation  of  a  conveyance. ^  So  where  a 
devisee  of  real  estate,  subject  to  debts  and  legacies,  had  contracted 
to  sell  the  estate  in  order  to  raise  money  to  pay  the  debts ;  and 
afterwards  a  bill  was  filed  against  her  by  the  legatees,  for  the  ad- 
ministration of  the  testator's  estates  ;  and  the  purchaser  consented 
to  go  before  the  Master,  upon  a  reference  as  to  the  title  in  that 
suit :  held,  he  was  not  thereby  bound  to  take  an  equitable  title, 
but  might  insist  on  having  the  same  title,  as  he  might  have  re- 
quired in  a  suit  for  specific  performance  ;  and  that,  as  two  com- 
missions of  bankrupt  had  issued  against  the  devisee  before  the 
contract,  though  neither  of  them  was  proceeded  in,  he  was  not 
hound  to  accept  the  title.^  iSo  where  the  conditions  of  sale  pro- 
vided, that  all  ol)jcctions  to  the  title  disclosed  by  the  abstract,  not 
taken  within  a  certain  time  after  its  delivery,  should  be  deemed  to 
be  waived ;  held,  the  time  for  objecting  was  not  to  be  comjjuted 
from  the  delivery  of  an  imperfect  abstract ;  and  an  objection  might 
still  be  taken  which  arose  out  of  evidence  called  for  before  the  ex- 
piration of  the  time  fixed.^  So  in  case  of  sale  under  a  decree,  the 
abstract  stated,  that  the  person,  at  whose  death  the  sale  was  to  be 
made,  proved  the  will  of  the  testator ;  but  it  did  not  state  the 
pleading  in  the  cause,  or  whether  that  person  was  living  or  dead. 
Held,  this  was  not  a  sufficiently  distinct  intimation  to  the  purchaser, 
that  the  time  of  sale  had,  without  any  sufficient  ground,  been 
anticipated.*(a) 

1  Burroughs  v.  Oakly,  3  Swanst.*159.  3  Hobson  v.  Bell,  2  Beav.  17. 

2  Cann  v.  Cann,  1  Sim.  &  Stu.  284.  •*  Blacklow  v.  Laws,  2  Hare,  40. 

complete  the  purchase,  was  held  to  have  described,  and  the  quantity  of  the   land 

waived  his  right  to  an  investigation  of  tlie  slialt  be  taken  as  stated,  wliether  more  or 

title,  and  decreed  to  perform  the  agree-  less   (although  the  title-iieeds  state  such 

ment  specificahy,  and  to  pay  interest  at  quantity  to  be  less),  without  any  compen- 

£i  per  cent  on  the  unpaid  purchase-money  sation  on  eith.er  side.     And  no  other  evi- 

from  the  time  of  taking  possession,  and  denceofidentity  shall  he  reciuired  than  that 

the  costs.     Hall  v.  Laver,  '6  You.  &  Coll.  furnished  by  tlie  title-deeds,  antl  the  state- 

lyl.  ments  therein  sliall  be  tieemetl  conclusive 

(a)  A  contract  of  sale  described    the  evidence  of  the  identity  of  the  property." 

property  purciiased  as  "  the  cottage  and  On  default,  the  deposit-money  was  to  be 

paddock,  comprising  1  a.  2  r.  8  p.,  situate  ibrfeited.     The  vendor   delivered   an  ab- 

at,  &c.,  described  in  the  particulars  as  lot  stract  of  title  to  'i  r.  22  p.  only.    Held,  this 

1."     The  description  of  lot  1  in  the  juir-  did  not,  under  the  circumstances,  autliorize 

ticulars  was,    "The   property   comi)rises  the  purchaser  to  contend  that  the  title  had 

1  a.  2  r.  8  p.,  situate,  &c.,  consisting  of  a  not  been  made  according  to  the  conditions, 

cottage  and  paddock  in  tlie  occupation  of  and   that    he    was    hound    to    complete. 

Mr.  P."    By  the  contract  of  sale,  the  title  Nicholl  v.  Chambers,  8  Eng.  Law  &  Eq. 

and  conveyance    were   to   be    completed  423.     So  A.  bought  land  of  B.,  and  gave 

according  to  the  conditions  of  sale.     One  his  bond  for  the  purchase-money,  condi- 

of  these  was,  "  The  property  comi)rised  in  tioned  to  be  paid  on  13. 's  making  a  clear 

the  particulars  is  presumed  to  be  correctly  title  in  fee-simple.    B.'s  agent  delivered  to 


260 


LAW  OF  VENDOES  AND  PUECHASERS.     [CHAP.  XIV. 


14.  The  objection  to  a  title  is  not  waived  by  the  premature  con- 
ditional approbation  of  the  purchaser's  counsel ;  but  the  expense 
of  making  out  the"  title  before  this  objection  was  taken  shall  be 
repaid.^  So  where  the  purchaser's  solicitor  wrote  to  the  vendor's 
solicitors,  that,  unless  certain  proof  of  title  were  adduced,  the  pur- 
chase must  go  off;  held,  the  purchaser  might  still  maintain  an 
action  for  his  expenses  in  investigating  the  title .^(a) 

15.  Where  the  contract  binds  the  vendor  to  give  a  good  title, 
the  want  of  such  title  may  avoid  the  contract  at  his  election,  even 
tliough  the  purchaser  seeks  to  enforce  it.  Thus,  one  of  the  terms 
of  an  agreement  was,  that  the  contract  should  be  void,  if  the  pur- 
chaser's counsel  should  be  of  opinion  that  a  marketable  title  could 
not  be  made  by  a  certain  time.  The  counsel  being  of  that  opinion, 
a  bill  by  the  purchaser  for  specific  performance,  with  compensa- 
tion, was  dismissed  with  costs ;  and  an  application,  afterwards 
made  by  the  plaintiff,  that  his  deposit  might  be  set  off  against  the 
defendant's  costs,  and  the  surplus  (if  any)  paid  to  him,  was  re- 


1  Deverell  v.  Bolton,  18  Ves.  505. 


2  Hall  V.  Betty,  5  Scott  N.  R.  508. 


A.  a  deed,  on  its  face  in  fee-simple ;  but 
thei'e  were  incumbrances  on  the  land  un- 
known to  A.  Held,  A.  might  waive  his 
right  to  a  deed  in  fee,  and  accept  a  title 
for  a  less  interest ;  that  whether  there  was 
such  a  waiver  was  a  question  for  tlie 
Court ;  that  there  must  be  unequivocal 
proof  of  it;  and  the  record  of  a  judg- 
ment lien  was  not  notice  to  A.  Minor  v. 
Edwards,  12  Mis.  137. 

W.  T.,  being  possessed  of  certain  copy- 
hold premises,  mortgaged  the  same  to  P., 
and,  by  the  indenture  of  mortgage,  cove- 
nanted to  surrender  them  into  the  hands 
of  the  dean  and  chapter  of  W.,  the  lords 
of  the  manor,  to  the  use  of  the  defendant, 
who  was  to  be  a  trustee  to  sell  upon  non- 
payment of  the  mortgage-money.  W.  T. 
made  no  surrender,  but  died,  after  devis- 
ing all  his  real  property  to  certain  trus- 
tees. Subsequently  the  lords  of  tlie 
manor,  at  the  nomination  of  the  defend- 
ant, granted  the  property  to  certain  per- 
sons upon  tlie  above  trusts,  &c.  W.  T., 
in  his  lile,  surrendered  other  property  to 
the  lords  of  the  manor,  by  way  of  mort- 
gage to  C,  in  consideration  of  a  loan  of 
£100,  and,  by  an  indenture  of  even  date, 
covenanted,  amongst  other  things,  to  repay 
the  money  borrowed,  and  gave  the  mort- 
gagee a  power  of  sale,  upon  non-payment. 
The  defendant  sold  the  whole  property  to 


the  plaintiff,  under  the  following  condi- 
tions :  that  he  should  deduce  a  good  title 
to  the  premises  for  the  lives  by  which 
they  were  held  under  the  dean  and  chap- 
ter of  W.,  but  that  no  earlier  or  other 
title  should  be  deduced,  or  any  deed  or 
document  produced,  anterior  to  the  last 
copy  of  the  court-roll,  by  which  the  prem- 
ises were  granted.  Held,  the  defendant 
showed  no  title  in  himself,  as  no  surrender 
of  the  premises  had  been  made  to  his  use 
by  W.  T.,  and  the  vendee  was  not  pre- 
cluded by  the  conditions  from  making 
this  objection  to  the  title,  as  it  appeared 
on  the  face  of  the  abstract  delivered. 
Sellick  V.  Trevor,  11  Mees.  &  VVels.  722. 
(a)  The  right  to  a  good  title  does  not 
grow  out  of  the  agreement  between  the  par- 
ties, but  is  given  btj  law.  But  a  purchaser 
may  waive  his  right,  by  going  on  with 
the  agreement  alter  he  has  full  notice 
that  he  is  not  to  expect  a  good  title. 
This  is,  in  such  case,  matter  of  notice,  and 
not  of  contract.  Ogilvie  v.  Fonjambe,  3 
Meri.  53.  Where  the  doubt  as  to  a  title 
is  upon  matters  of  fact,  it  may  form  a 
projjer  case  for  an  issue  at  law  ;  and,  till 
the  doubt  is  removed,  or  confirmed,  by 
further  investigation,  the  Court  will  not 
either  decree  performance  or  dismiss  the 
bill.  Seymour  v.  Delancey,  1  Hopk. 
436. 


CHAP.    XIV.]  TITLE    OF   THE   VENDOR,   ETC.  2G1 

fused  with  costs.^  So  where,  by  the  conditions  of  sale,  if  the  vendee 
makes  any  requisition  which  the  vendor  is  unable  or  unwilling  to 
comply  with,  the  latter  may  by  written  notice  anniil  the  sale  ; 
if  the  purchaser  insists  upon  a  requisition  after  information  of  such 
inability,  the  vendor  may  rescind  by  notice,  without  giving  time  in 
the  notice  for  the  purchaser  to  waive  his  requisition,  and  the  vendor 
may  avail  himself  of  tliis  condition,  although,  being  entitled  to  an 
underlease  for  twenty-four  years,  less  three  days,  he  put  up  the 
property  for  sale,  as  held  under  a  lease  for  twenty-four  years, 
relying  on  the  promise  of  parties  having  the  three  days  to  concur, 
which  they  afterwards  did.^  So  where  parties  have  made  a  written 
agreement  to  exchange  lands  which  neither  of  them  owns,  with  a 
proviso  that  it  is  satisfactory,  "  provided  titles  can  be  procured 
and  made;"  the  contract  is  contingent,  and  not  binding,  if  the 
parties  are  unable  to  comply  with  their  conditions.^ 

1  Williams  v.  Edwards,  2  Sim.  78.  beyond  what  he  ever  contemplated,  or  he 

2  Duddelli'.  Simpson,  Law  Rep.  (Eng.)  involved  in  litigation  and  expense  which 
Eq.  February,  18G7,  p.  lOL  In  this  case  he  never  contemi)lated.  But  to  say  that 
Sir  G.  J.  Turner  incidentally  remarked  a  vendor  could  annul  a  contract  hrevi  maim, 
(p.  106),  "The  word  'imwilling'  is  not  to  would,  in  truth,  be  giving  to  tlie  vendor 
be  considered  as  giving  an  arbitrary  power  the  power  of  saying  that  that  which  was 
to  the  vendor  to  annul  the  contract.  He  intended  as  a  sale,  and  was  a  sale,  shall  in 
must  show  some  reasonable  ground,"  as  truth  be  no  sale  at  all." 

that  "  he  will  be  involved  in  expenses  far         3  Lacy  v.  Hall,  37  Penn.  360. 


262 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XV. 


CHAPTER  XV. 

INDEPENDENT  COVENANTS  IN  A  CONTRACT  OP  SALE  AND  PURCHASE. 

EXCEPTIONS  TO  THE  RULE   OF  REQUIRING  THE  VENDOR  TO 

CONVEY  A  GOOD  TITLE. 


1.  Although  the  contract  of  sale  and  purchase,  as  has  been 
stated,  is  in  general  mutual  and  conditional,  so  that  the  vendor 
cannot  enforce  performance,  without  fulfilling  his  own  part  of  the 
agreement ;  yet  this  construction  depends  upon  the  circumstances 
of  the  case,  and  the  peculiar  phraseology  used  by  the  parties,  and 
will  not  be  adopted,  where,  from  the  language  used,  they  appear 
to  have  intended  otherwise,  or  where  substantial  justice  requires 
a  different  construction. (a)     Several  old  and  leading  cases  may 


(a)  No  subject  has  been  more  prolific 
of  nice  distinctions  and  conflicting  decis- 
ions, tlian  tliat  of  tlie  dependence  or  in- 
dependence of  covenants,  entered  into, 
respectively,  by  the  parties  to  a  contract. 
As  the  cases  do  not  pertain  wliolly  or 
chiefly  to  the  sale  and  purchase  of  real 
property,  it  would  be  foreign  from  our 
plan  to  do  more  than  state  the  general 
principles  which  may  now  be  considered 
as  settled  by  the  weight  of  authority. 

In  Kingston  v.  Preston,  Dougl.  690, 
Lord  Mansfield  says,  "  There  are  three 
kinds  of  covenants :  1st.  such  as  are 
called  mutual  and  independent,  where  eitJier 
party  may  recover  damages  from  the 
other  for  the  injury  he  may  have  received 
by  a  breach  of  the  covenants  in  his  favor, 
and  where  it  is  no  excuse  for  the  defend- 
ant to  allege  a  breach  of  the  covenants  on 
tiie  part  of  the  plaintiff.  !2dly.  Tl^ere 
are  covenants  which  are  conditions  de- 
pendent on  each  other,  in  which  the  per- 
formance of  one  depends  on  the  prior 
performance  of  tlie  other,  and  therefore 
till  this  prior  condition  be  performed,  the 
other  party  is  not  liable  to  an  action  on 
his  covenant.  3dly.  There  is  also  a  third 
sort  of  covenants  wliich  are  mutual  con- 
ditions to  be  performed  at  tlie  same  time  ; 
and  in  these,  if  one  party  was  ready,  and 
offered  to  perform  his  part,  and  the  other 


neglected  or  refused  to  perform  his,  he 
who  was  ready  and  offered  has  fulfilled 
his  engagement,  and  may  maintain  an 
action  tor  the  default  of  the  other,  though 
it  is  not  certain  that  either  is  obHged  to 
do  the  first  act.  The  dependence  or  in- 
dependence of  covenants  is  to  be  collected 
from  the  evident  sense  and  meaning  of 
the  parties;  and,  however  transposed  they 
ma}^  be  in  the  deed,  their  precedency 
must  depend  on  the  order  of  time  in 
which  the  intent  of  the  transaction  re- 
quires their  performance." 

It  is  further  said,  by  a  writer  of  high 
authority,  "  Almost  all  the  old  cases,  and 
many  of  the  modern  ones  on  this  subject, 
are  decided  upon  distinctions  so  nice  and 
technical,  that  it  is  very  difficult,  if  not 
impracticable,  to  deduce  from  them  any 
certain  rule  or  principle  by  which  it  can 
be  ascertained,  what  covenants  are  inde- 
pendent, and  what  dependent,  and,  of 
course,  when  it  is  necessary  to  aver  per- 
formance in  the  declaration,  and  when 
not."  1  Wms.  Saun.  320,  n.  4.  "  The 
Judges  in  these  cases  seem  to  have 
founded  their  construction  of  the  inde- 
pendency or  dependency  of  covenants  or 
agreements  on  artificial  and  subtile  dis- 
tinctions, without  regarding  the  intent 
and  meaning  of  the  parties.  Covenants 
are  construed  to  be  either  dependent  or 


CHAP.    XV.] 


INDEPENDENT    COVENANTS,    ETC. 


2G3 


be  cited,  to  illustrate  this  exception.  Thus,  where  A.  covenants 
with  B.  to  marry  his  daughter,  and  B.  covenants  to  convey  an 
estate  to  A.  and  the  daughter,  in  special  tail  ;  it  is  said,  that,  though 


independent  of  ciieli  otlicr,  accordintj  to 
the  intention  and  meaning-  of  the  parties, 
and  the  good  sense  of  tlie  ease  ;  and  teeh- 
nieal  words  sliould  give  way  to  such 
intention.  The  following  rules  are  to 
determine  the  question:  1.  If  a  day  be 
appointed  for  payment  of  money,  or  part 
of  it,  or  for  doing  anj'  other  aet,  and  tlie 
day  is  to  hapjien,  or  mai/  hapjien,  bcjorc 
the  thing  which  is  the  consideration  of 
the  money,  or  other  act,  is  to  be  per- 
formed ;  an  action  may  be  brouglit  for 
the  money,  or  for  not  doing  such  other 
aet  before  performance,  for  it  appears  that 
the  party  relied  upon  his  remedt/,  and  did 
not  intend  to  make  the  performance  a  con- 
dition precedent.  And  so  it  is  where  no 
time  is  fixed  for  performance  of  that, 
wliich  is  the  consideration  of  the  money 
or  other  act.  2.  When  a  day  is  appointed 
for  the  payment  of  the  money,  &c.,  and 
the  day  is  to  hapjjen  after  the  thing  which 
is  the  consideration  of  the  money,  &c.,  is 
to  be  performed,  no  action  can  be  main- 
tained for  the  money,  &c.,  before  per- 
formance. 3.  Where  a  covenant  goes 
only  to  part  of  the  consideration  on  both 
sides,  and  a  breach  of  such  covenant  may 
be  paid  for  in  damages,  it  is  an  independ- 
ent covenant,  and  an  action  may  be  main- 
tained for  a  breach  of  the  covenant  on  the 
part  of  the  defendant,  without  averring 
performance  in  the  declaration.  4  But, 
where  the  mutual  covenants  go  to  the 
ivliole  consifleration  on  both  sides,  tliey  are 
mutual  conditions,  and  performance  must 
be  averred."     lb.  320  a,  b,  c. 

Some  further  tests  of  the  dependence 
or  independence  of  covenants  have  been 
suggested  by  Judges  and  elementary 
writers ;  such  as,  the  provision  that  the 
acts  on  the  one  side  and  the  other  are  to 
be  done  at  the  same  time;  the  nature  of  the 
acts  to  be  performed,  and  the  order  in 
which  they  must  necessarily  precede  or 
follow  each  other ;  the  fact  that  one  aet  is 
the  consideration  for  the  other ;  and  the  use 
of  the  partici])le,  "  doing,"  "  performing," 
&c.,  wliich,  prefixed  to  a  covenant  by 
another  person,  is  said  to  be  a  mutual  l 
(independent)  covenant,  and  not  a  condi- 
tion precedent.  See  1  Chit.  PI.  313-5 ; 
2  Pars,  on  Contr.  40  and  n.  In  a  late 
case  it  is  held,  that  bonds  mutually  en- 
tered into  at  the  same  time  between  two 


parties,  each  to  the  (tther,  rcsj)ecting  the 
sanu'  suljjecl-niatter,  will  be  consiruod  as 
dependent  upon  each  other,  and  either 
party  who  seeks  to  enforce  the  stipulations 
entered  into  by  the  other  must  be  ready 
to  perform  his  own.  Smith  i\  Boston, 
&c.,  6  Allen,  262.  It  would  seem,  how- 
ever, that  this  is  an  uniiecessary  ami)lifi- 
cation  of  the  diflerent  classes  of  covenants, 
and  involves  the  subject  in  needless  in- 
tricacy, because,  as  has  been  already 
remarked,  nearlj'  all  these  artificial  rules 
are,  by  the  later  authorities,  made  to 
yield  to  the  intent  of  the  ])arties  and  the 
justice  of  the  ease. 

The  following  remarks  may  be  cited, 
as  showing  that  covenants  are  to  be  con- 
strued, with  reference  to  the  point  now 
under  consideration,  rather  by  the  ajjpar- 
ent  intent  than  by  any  more  technical 
standard  :  — 

"  If  a  party  promise  to  build  a  house 
upon  the  land  of  another,  and  to  dig  a 
well  on  the  premises,  and  to  place  a  jnnnp 
on  it ;  and  the  owner  of  the  land  cove- 
nants seasonably  to  suppl}'  all  materials 
and  furnish  a  pump ;  it  is  very  clear  that 
the  stipulation  to  furnish  materials  is  de- 
pendent, and  constitutes  a  condition,  be- 
cause the  builder  cannot  perform  on  liis 
part  until  he  has  the  materials.  So  to 
put  a  pump  "into  the  well.  But  the  stipu- 
lation to  dig  a  well  is  not  conditional, 
because  it  goes  to  a  small  jiart  only  of  the 
consideration,  and  does  not  necessarily 
depend  on  a  prior  j)erformance,  on  the 
part  of  the  owner,  and  because  a  failure 
can  be  compensated  in  damages,  and  the 
remedy  of  the  owner  is  by  action  on  the 
contract."  Per  Shaw,  C.J.,  Knight  v. 
N.E.  Worsted  Co.,  2  Cush.  280. 

"  When  the  act  of  one  party  must 
necessarily  precede  any  act  of  the  other, 
as  where  one  stipulates  to  manufacture 
an  article  from  materials  to  be  furnished 
by  the  other,  and  the  other  stipulates  to 
furnish  the  materials,  the  act  of  furnishing 
the  materials  necessarily  ])recedes  the  act 
of  manufacturing  and  will  constitute  a 
condition  j)recedent,  without  express 
words."  Per  Shaw,  C.J.,  Milldam,  &c. 
V.  Hovey,  21  Pick.  439. 

Upon  the  same  principle,  a  late  case 
was  decided  in  Massachusetts.  The  de- 
fendant covenanted  with  the  plaintiffis  to 


1  This    word    is    nrdiniirily   used    in    tlie     the  diroctly  contrary  sense  of  rm conditional 
sense  of  conditional  or  dependent, .but.  some-     aud  independent.     See  4  Met.  (Ky.),  110. 
times,  either  designedly  or  iuadverteiitly,  in 


264 


LAW    OF    VENDORS    AND    PURCHASERS.  [CHAP.    XV. 


A.  many  another  woman,  or  the  daughter  another  man,  still  A. 
may  have  an  action  against  B.  on  the  covenant ;  but  if  B.  had 
covenanted  to  convey  the  estate  for  the  cause  aforesaid,  the  mar- 
riage is  a  condition  precedent,  and  no  action  will  lie  until  it  be  sol- 
emnized.^ So  where  one  covenanted  with  liis  copyholder,  to  assure 
to  him  and  his  heirs  the  freehold  and  inheritance  of  his  copyhold, 
and  the  copyholder,  in  consideration  of  the  same  performed,  cove- 
nanted to  pay  a  certain  sum ;  held,  a  condition  precedent,  and  the 
party  must  make  the  assurance  before  he  could  claim  the  money  ; 
otherwise,  had  the  words  been,  in  consideration  of  the  said  covenant 
to  he  performed.^  So,  in  articles  of  agreement  between  A.  and  B., 
A.  covenants  tliat,  for  the  consideration  thereafter  expressed,  he 
will  convey  lands  to  B.  in  fee,  and  B.  for  the  consideration  afore- 
said covenants  to  pay  a  certain  sum  to  A.  Held,  independent 
covenants,  and  that  A.  might  bring  an  action  for  the  money  before 
any  conveyance  of  the  lands.^  So,  in  a  case  often  cited,  the  plain- 
tiff conveyed  to  the  defendant  the  equity  of  redemption  of  a  plan- 


1  15  H.  7,  10,  pi.  17 ;  Bro.  Covenant, 
22. 

proceed  to  California,  as  one  of  a  joint- 
stock  companj',  and  labor  tliere  for  two 
years,  and  to  remit  the  plaintiffs  one-half 
of  tlie  net  proceeds  of  one  share  in  the 
company,  so  often  as  dividends  should  be 
made.  The  other  members,  while  on  the 
way  to  California,  contrary  to  the  defend- 
ant's wishes,  abandoned  the  enterprise, 
and  sold  their  vessel  and  cargo.  Hold, 
the  defendant  was  not  liable  on  his  cove- 
nant to  proceed  to  California.  Bigelow, 
J.,  says,  in  substance,  "  It  is  necessary  to 
consider  the  situation  of  the  parties,  the 
subject-matter  of  the  contract,  and  the 
purposes  and  objects  to  be  accomplished 
by  it.  The  defendant,  it  is  true,  agreed 
with  the  plaintiffs  to  go  to  California  and 
to  remain  there  for  two  years,  and  it 
appears  that  he  failed  to  comply  with  tliis 
stipulation.  If  notliing  furtlier  appeared, 
the  plaintiffs  would  have  sliown  a  breach 
of  the  agreement,  for  which  they  would 
be  entitled  to  damages.  But  it  is  neces- 
sary to  bear  in  mind  with  whom,  liow, 
and  for  what  purpose  he  was  to  go  there. 
He  was  not  to  go  alone,  upon  his  indi- 
vidual responsibility,  to  trade  and  labor 
for  the  benefit  of  the  plaintiffs  and  him- 
self. He  was  to  proceed  thither  as  one 
of  a  company  or  copartnership,  of  which 
the  plaintiffs  and  others  were  members. 
It  was  a  joint  enterprise  or  adventure,  in 
which  the  capital,  industry,  and  energy 


2  Brocas'  case,  3  Leon.  219. 

3  Rulle's  Abr.  415,  pi.  8. 

of  each  member,  or  a  substitute  to  be 
approved  by  the  company,  were  to  be 
combined  for  the  mutual  benefit  and 
profit  of  all.  The  plaintiffs  had  no  right, 
under  this  contract,  to  require  the  de- 
fendant to  give  his  individual  time  and 
services  to  them,  disconnected  from  those 
who  had  agreed  to  render  theirs  in  carry- 
ing on  the  joint  enterprise."  Field  v. 
Woodmancy,  10  Cush.  427,  4.31,  432. 

The  course  of  decisions  upon  this  sub- 
ject has  been  exceedingly  variable  in 
different  courts,  and  elaborately  decided 
cases  have  been  often  overruled  by  sub- 
sequent ones  in  the  same  court.  Thus 
the  cases  of  Terrj'  v.  Duntze,  2  H.  Bl. 
389 ;  Seers  v.  Fowler,  2  Johns.  272 ;  and 
Havens  v.  Bush,  ib.  387,  which  were 
supposed  unreasonably  to  extend  the  gen- 
erally correct  principle,  of  construing 
covenants  to  be  wholly  independent  where 
any  part  of  the  one  is  to  be  performed 
before  execution  of  the  other,  were  over- 
ruled in  Cunningham  v.  Morrell,  10  Johns. 
203.  So  the  cases  of  Craddock  v.  Al- 
dridge,  2  Bibb,  15,  and  Mason  v.  Cham- 
bers, 4  Litt.  253,  which  adopted  the  same 
doctrine,  were  overruled  in  M'Lane  v. 
Rusli,  9  Dana,  64,  and  Allen  v.  Sanders, 
7  B.  Mon.  593.  So  also  the  decision  of 
the  Supreme  Court  of  New  York,  in 
Grant  v.  Johnson,  6  Barb.  337,  was  sub- 
sequently reversed,  1  Seld.  247. 


4 


CHAP.    XV.]  INDEPENDENT   COVENANTS,    ETC.  2G5 

tation  ill  the  West  Indies,  with  the  stock  of  negroes  upon  it,  in 
consideration  of  XoOO  and  an  annuity  of  <£1G0  for  life,  and  cove- 
nanted that  he  had  a  good  title  to  the  plantation,  was  lawfully 
possessed  of  the  negroes,  and  that  B.  should  quietly  enjoy.  The 
defendant  covenanted,  that,  the  plaintiff  well  and  truly  performing 
all  and  every  thing  contained  on  his  part  to  be  performed,  he 
would  pay  the  annuity.  In  an  action  on  the  defendant's  covenant, 
for  non-payment  of  the  annuity,  the  plea  was,  that  the  plaintiff 
was  not  at  the  time  legally  possessed  of  the  negroes,  and  so  had 
not  a  good  title  to  convey.  The  Court  of  King's  Bench,  on 
demurrer,  held  the  plea  bad,  remarking  that,  if  such  plea  were 
allowed,  any  one  negro,  not  being  the  property  of  the  plaintiff, 
would  bar  the  action.^  So,  in  a  sale  of  land,  the  bond  to  the  pur- 
chaser recited,  that  a  certain  sum  was  to  be  paid  on  the  first  of 
the  next  March,  and  the  residue  in  two  annual  instalments,  for 
which  the  purchaser  gave  his  notes.  The  bond  stipulated,  that 
possession  should  be  given  on  a  day  named,  and  a  general  warranty 
deed  "  when  the  first  payment  is  made."  In  a  suit  upon  the  note 
for  the  last  instalment,  the  first  payment  having  been  made,  and 
the  vendor  having  failed  to  make  the  deed  ;  held,  the  contracts  to 
convey  and  to  pay  were  mutual,  not  dependent ;  and  the  failure 
to  convey  was  no  defence.^ 

2.  As  has  been  already  explained,  the  mutuality  of  the  contract 
of  sale  and  purchase  has  been  chiefly  illustrated,  in  requiring  the 
vendor  to  make  a  perfect  title  to  the  vendee,  involving,  of  course, 
not  merely  the  execution  of  a  conveyance,  but  also  the  transfer,  by 
means  of  such  conveyance,  of  an  absolute  ownership  or  property 
in  the  land.  On  the  other  hand,  the  doctrine,  that  the  covenants 
of  vendor  and  vendee  are  independent,  has  been  chiefly  applied,  in 
giving  the  former  a  claim  upon  the  latter  without  any  performance 
on  his  own  part.  But  the  subordinate  question  also  arises,  whctlier, 
even  where  the  stipulations  are  dependent,  the  special  terms  of 
the  contract  are  not  satisfied  by  the  mere  execution  of  a  convey- 
ance, although  insufficient  to  pass  a  perfect  title  ;  the  vendor  him- 
self not  having  such  title.  Some  cases  are  found  in  the  books, 
which  thus  restrict  the  vendor's  obligation.  Thus  it  is  held,  that 
under  a  general  contract  for  the  sale  and  purchase  of  lands,  or 
where  the  terms  "  well  and  sufficiently  "  are  added,  the  purchaser 

1  Boone  v.  Ejre,  1  H.  Bl.  273.'  2  Hutchings  v.  Moore,  4  Met.  (Ky.),  110. 


2()6  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XV. 

is  entitled  to  a  covenant  of  special  warranty  only,  or  a  covenant 
against  the  acts  of  tlie  grantor  and  his  heirs  ;^  so  also  that  equity 
will  decree  a  good  and  sufficient  conveyance  to  be  made  upon  pay- 
ment of  the  purchase-money.^  So  an  agreement  to  make  a  "  deed  " 
and  to  "  convey "  requires  such  a  conveyance  as  will  give  the 
vendee  a  sufficient  title,  in  view  of  the  provisions  of  the  statute, 
which  defines  what  is  necessary  to  be  contained  in  a  deed.^  And 
it  has  been  further  held  in  Massachusetts,  in  construction  of  the 
terms  "  good  and  sufficient,"  that  a  contract  to  execute  and  deliver 
a  good  and  sifficient  warranty  deed  of  land  is  not  a  contract  to 
convey  a  good  title.  Therefore  a  declaration,  alleging  as  a  breach 
that  the  defendant  had  no  legal  and  valid  title,  is  insufficient.*  It 
is  said,  "  The  words  '  good  and  sufficient '  relate  only  to  the  validity 
of  the  deed  to  pass  the  title  which  the  defendants  had  to  the  plain- 
tiff, and  do  not  imply  that  their  title  was  valid,  or  that  it  was  free 
from  incumbrances.  To  guard  against  any  defect  of  title,  a  cove- 
nant of  warranty  was  provided  for  ;  which  shows  clearly  that  the 
agreement  was  so  understood  by  the  parties.  If  any  authority 
were  necessary  to  support  so  plain  a  construction  of  the  contract, 
the  case  of  Gazley  v.  Price  ^  will  be  found  full  and  decisive  as  to 
this  point."  ^  So,  in  the  case  in  New  York  just  referred  to,  it  is 
held,  that,  when  the  plaintiff  covenants  to  give  a  good  and  sufficient 
deed  on  a  certain  day,  and  the  defendant  covenants  on  the  same 
day  to  pay  part  of  the  consideration,  and  secure  the  residue,  the 
covenant  is  performed  by  the  plaintiff's  delivering  a  deed  sufficient 
in  law  to  pass  any  title  which  he  may  have,  but  without  covenant 
or  warranty  ;  and  the  plaintiff,  in  an  action  of  covenant  on  the 
agreement  to  recover  the  consideration,  having  averred  that  he  had 
given  a  deed,  a  plea  that  the  plaintiff  was  not  seised,  and  had  not 
power  to  sell,  is  bad."  And  other  cases  have  occurred  in  the  same 
State,  to  the  same  effect.  Thus,  in  case  of  an  agreement  to  "  exe- 
cute a, deed  to  [the  vendee],  his  heirs  and  assigns  for  ever,"  held, 
the  vendor  was  bound  only  to  give  a  conveyance  or  assurance  of 
the  property,  without  warranty  or  personal  covenants.^    The  Court 


1  Lloyd  V.  Parrell,  48  Penn.  73  ;    14         6  Per  Wilde,  J.    Tinney  v.  Ashley,  1-5 

Ind.  12 ;  Cadvvalader  v.  Tryon,  37  Peuu.  Pick.  552. 
318.  "^  Gazley  v.  Price,  16  Johns.  267. 

-  Murphy  v.  McVicker,  4  McL.  252.  ^  Van  Eps  v.  Schenectady,  12  Johns. 

3  Parker  v.  McAllister,  14  Ind.  12.  436.     A  case  said  to  be  "  very  well  con- 

*  Tinney  v.  Ashley,  15  Pick.  546.  sidered."     16  Johns.  269. 

5  16  Johns.  268. 


CHAP,   XV.]  INDEPENDENT   COVENANTS^    ETC.  267 

say, "  By  covenanting  to  execute  a  deed,  no  greater  duty  or  obliga- 
tion can  be  intended  than  to  execute  a  conveyance  or  assurance 
of  the  property,  which  may  be  good  and  perfect,  witliout  warranty 
or  personal  covenants.  In  the  case  of  Frost  and  others  v.  Ray- 
mond,i  it  is  stated,  in  the  opinion  of  the  Court,  to  be  a  settled 
position,  that  an  estate  in  fee  may  be  created  by  the  usual  and 
solemn  forms  of  conveyance,  without  warranty,  express  or  implied  ; 
and  that  a  conveyance  in  fee  does  not,  ipso  facto,  imply  a  warranty  ; 
that,  if  it  did,  our  books  would  be  inconsistent  and  unintelligible 
on  the  subject.  The  case  of  Nixon  v.  Hyserott^  supports  the  same 
principle,  and  shows  that  a  general  power  to  execute  a  deed  does 
not  authorize  the  giving  it  with  the  usual  covenants  of  warranty, 
&c.  It  is  evident,  then,  that  where  it  is  contracted  to  execute  a 
deed,  as  in  this  case,  to  the  plaintiff,  his  heirs  and  assigns,  for- 
ever, no  covenant  of  any  description  can  be  intended,  either  by 
implication  or  otherwise  ;  nor  will  the  circumstance  of  the  sale 
being  at  auction  vary  the  result."  ^  So  an  agreement  to  give  a 
deed  of  land  was  held  to  be  satisfied  by  a  quitclaim  deed  without 
covenants.*  "  Courts  of  law  can  exact  no  more  of  parties  than 
the  performance  of  their  contracts,  according  to  the  intention  man- 
ifested by  the  terms  used  by  them.  When,  therefore,  it  is  agreed 
that  a  deed  shall  be  given,  nothing  more  can  be  exacted  than  an 
instrument  sufficient  to  pass  the  estate  of  the  party  who  is  to  give 
a  deed.  If  it  be  required  that  the  deed  should  contain  covenants 
of  warranty,  nothing  is  more  simple  than  the  insertion  of  that 
stipulation.  A  deed  does  not,  ex  vi  termini,  mean  a  deed  with 
covenants  of  warranty,  but  only  an  instrument  with  apt  terms 
conveying  the  property  sold."  ^  So  the  words,  "  a  good  warranty 
deed  of  conveyance,"  were  held  to  relate  to  the  instrument  of  con- 
veyance, not  to  the  title.^(a) 

1  2  Caines'  Eep.  191.  *  Ketchum  v.  Evertson,  13  Johns.  359. 

2  5  Johns.  58.  ^  Per  Spencer,  J.     13  Jolins.  364.. 

3  Per  Yates,  J.     12  Johns.  442,  443.         e  Parker  v.  Parmele,  28  Jolins.  130. 

(a)  In  a  late  case,  it  is  held,  that  an  State.  Thus,  in  the  case  of  Ketchum 
agreement  for  a  "  warranty  decil  "  re-  v.  Evertson,  it  was  romarkod,  in  con- 
quires  only  the  common  covenant  of  war-  nection  with  the  point,  that,  under  the 
ranty.  A  covenant  against  incumlirances  form  of  sale  there  proved,  no  rchaxe  of 
is  not  necessary.  Wilsey  v.  Dennis,  44  dower  was  necessary :  "  Had  the  agree- 
Barb.  354.  With  reference  to  the  cases  ment  been,  that  the  defendant  should,  by 
in  New  York,  referred  to  in  the  text,  it  deed,  vest  the  title  to  the  lamls  sold  in 
is  to  be  remarked,  that  they  do  not  con-  the  plaintiffs,  then  the  plainiiffs  would 
form  to  the  current  of  decisions  in  other  have  had  a  right,  if  the  entire  legal  title 
courts,  and  can  hardly  be  considered  to  was  in  the  defendant,  so  tlint  the  wife 
express  the  existing  rule  of  law  in  that  might  liave   been  endowed  of  the  land 


268 


LAW  OP  VENDORS  AND  PURCHASERS.     [CHAP.  XV. 


in  case  of  lier  survivorship,  to  insist  on 
her  joining  in  the  deed."  So,  in  Gazley 
V.  Price  (p.  266),  the  Court  comment  with 
approbation  upon  the  prior  case  of  Jones 
V.  Gardner,  10  Johns.  266,  wliich  was  as 
follows  :  Covenant  to  give  a  good  and 
sufficient  deed  in  law  to  vest  the  pur- 
chaser with  the  title  of  the  farm  of  land, 
with  the  appurtenances.  The  vendor's 
wife  did  not  duly  execute  the  deed.  Held, 
the  deed  was  not  a  fulfilment  of  the  con- 
tract, because  the  agreement  bound  the 
vendor  to  give  a  deed  which  should  pass 
the  legal  estate  in  fee,  free  and  clear  of 
all  valid  claims,  liens,  and  incumbrances. 
Ace.  Thrasher  v.  Pinckard,  23  Ala.  616  ; 
Stevens  v.  Hunt,  15  Barb.  17.  So  a  more 
recent  case  decides,  that  a  covenant  to 
sell  and  convey  land  by  warranty  deed  is 
not  answered  by  the  delivery  of  a  deed 
with  the  usual  covenant  of  warrant3%  so 
as  to  pass  whatever  estate  the  grantor  has 
in  the  lands,  but  should  also  be  an  opera- 
tive conveyance,  and  pass  to  the  grantee 
a  perfect  title.  Atkins  v.  Bahrett,  19 
Barb.  639. 

And  the  former  decisions  may  perhaps 
be  regarded  as  virtually  overruled  by.  the 
case  of  Fletcher  v.  Button,  4  Comst.  896, 
6  Barb.  646,  where  a  contract  to  give  a 
good  and  sufficient  deed  of  land,  free  from 
all  incumbrances,  was  held  not  to  be  sat- 
isfied by  a  warranty  deed,  the  grantor  not 
having  the  legal  title.  Ruggles,  J.,  says  : 
"  I  think  the  defendant  is  mistaken  in 
assuming  that  a  deed  which  conveyed  no 
title  would  have  been  a  jierformance  of 
his  contract.  There  are,  however,  two 
cases  which  give  countenance  to  the  de- 
fendant's construction  of  the  bond  in  this 
respect.  The  one  is  Gazley  v.  Price  (16 
Johns.  267) ;  the  other  is  that  of  Parker 
V.  Parmele  (20  Johns.  130).  But  the  rea- 
soning in  that  case  falls  short  of  showing 
that  a  covenant  to  execute  a  good  and  suf- 
Jicimt  deed  of  conveijance  is  satisfied  by  a 
deed  which  conveys  nothing.  It  is  difficult 
to  reconcile  these  cases  with  Clute  v.  Rob- 
inson, 2  Johns.  213,  and  Judson  v.  Wass, 

11  ib.  525,  and  Van  Eps  v.  Schenectady, 

12  ib.  436.  In  the  first-mentioned  case, 
Chief-Justice  Kent  says,  "  A  covenant 
to  execute  a  good  and  sufficient  deed  of  a 
piece  of  land  does  not  mean  merely  a 
conveyance  good  in  point  of  form.  Tiiat 
would  be  a  covenant  without  substance. 
But  it  means  an  operative  conveyance, 
one  that  carries  with  it  a  good  and  suffi- 
cient title  to  the  lands."  In  Judson  v. 
Wass,  the  plaintiff  agreed  to  execute  and 
acknowledge  a  deed  to  the  purchaser,  with 
warranty  of  title  except  as  to  the  quit- 
rents  on  certain  lots.  This  was  held  to 
mean,  "  not  merely  that  he  would  execute 
a  deed  containing  such  a  covenant,  but 


that  he  had  the  power  to  give  a  deed 
which  would  convey  with  it  an  indefeasi- 
ble title  to  tlie  lots,  subject  to  no  other 
incumbrance  or  charge  than  that  specified 
in  the  agreement."  The  learned  Judge 
proceeds  to  remark,  that  the  case  of  Van 
Eps  V.  Schenectady  (p.  266),  although  de- 
ciding that  a  deed  without  covenants  was 
a  compliance  with  the  conditions  of  sale 
in  that  case,  yet  also  decided,  that,  in 
order  to  be  so,  such  deed  must  actually 
convey  the  land ;  and,  as  the  deed  in 
question  did  not  thus  convey  it,  the  pur- 
chase-money should  be  recovered  back. 
So  in  Atkins  v.  Bahrett,  19  Barb.  648, 
Brown,  J.,  says,  "  In  Carpenter  v.  Bailey 
(17  Wend.  244),  the  cases  of  Gazley  v. 
Price  and  Parker  v.  Parmele  were  in 
effect  overruled.  In  Pomeroy  v.  Drury 
(14  Barb.  418),  the  late  Mr.  Justice  Bar- 
culo  declares  it  '  safe  to  say,  that  [these 
cases]  are  no  longer  authorities  for  hold- 
ing that  a  covenant  to  convey  lands  by 
warranty  deed,  on  a  sale,  refers  only  to 
the  form  and  sufficiency  of  the  deed,  and 
not  to  the  title  conve3'ed.' "  After  an 
elaborate  and  careful  examination  of  the 
authorities,  he  arrives  at  the  conclusion, 
that  "  when  a  man  buys  a  piece  of  land, 
and  contracts  for  a  conveyance,  in  gen- 
eral terms  tlie  presumption  is,  that  he 
expects  the  title,  and  the  grantor  should 
be  required  to  give  him  a  perfect  title." 

The  following  terras  in  the  contract  of 
a  vendor  have  been  held  to  require  the 
conveyance  of  a  good  title  :  — 

Covenant  to  execute  a  good  and  valid 
deed  of  land,  with  the  usual  covenants. 
Stone  V.  Stevens,  7  Verm.  27;  Lawrence 
V.  Dole,  11,  549. 

Covenant  to  give  a  "  good  and  perfect 
deed."  Greenwood  v.  Ligon,  10  Sm.  & 
M.  615  ;  Eeemster  v.  May,  13,  275. 

To  give  a  "  warranty  deed,  free  and 
clear  of  all  incumbrances."  Porter  v. 
Noyes,  2  Greenl.  22. 

To  "  sell  and  convey,  the  title  to  be 
a  good  and  sufficient  deed."  Brown  v. 
Gannon,  14  Maine,  276. 

To  "  execute  a  proper  deed,  conveying 
the  fee-simple,  with  full  covenants."  Tra- 
ver  V.  Halsted,  23  Wend.  66. 

To  "  grant,  convey,  and  assure,  by  a 
good  and  sufficient  deed,  to  be  made  and 
executed  according  to  law,  with  proper 
covenants  of  seisin,  right  to  convey, 
against  incumbrances  and  of  warranty." 
Little  V.  Paddleford,  13  N.H.  167. 

To  convey  "  by  a  good  and  sufficient 
warranty  deed,  in  fee-simple,  free  and 
clear  of  all  incumbrances."  Everson  v. 
Kirtland,  4  Paige,  628. 

To  "  make  a  lawful  'title."  Clark  v. 
Eedraan,  1  Blackf.  380. 

To  "  give  a  good  and  sufficient  deed. 


CHAP.  XV.] 


INDEPENDENT  COVENANTS,  ETC. 


269 


with  covenant  of  warranty."  Tiiidall  v. 
Conover,  1  Spenc.  214. 

In  Hill  V.  Hobart,  16  Maine,  164,  Sliep- 
ley,  J.,  says,  "  Without  asserting  that 
they  (the  decisions)  can  all  be  perfectly 
reconciled,  it  is  believed,  that  tlie  general 
principle  to  be  collected  from  them  is, 
that  when  the  contract  stipulates  for  a 
conveyance  of  tlie  land  or  estate,  or  for 
the  title  to  it,  performance  can  be  made 
only  by  the  conveyance  of  a  good  title ; 
and  when  it  stipulates  only  for  a  deed,  or 
for  a  conveyance  by  a  deed  described, 
performance  is  made  by  giving  such  a 
deed  or  conveyance  as  the  contract  de- 
scribes, however  defective  the  title  may 
be." 

Other  later  decisions  on  the  subject 
are  as  follows  :  — 

A  contract  which  recites  that  the  ven- 
dor is  the  owner  of  the  premises,  and  that 
he  is  to  convey  them  "  by  a  good  and 
sufficient  deed,"  &c.,  requires  a  deed  that 
conveys  a  complete  title.  Taft  v.  Kessel, 
16  Wis.  273. 

An  allegation  that  a  party  gave  "  a 
good  and  sufficient  deed  "  is  not  sustained 
by  proof  of  a  quitclaim  deed.  Watkins 
V.  Rogers,  21  Arlc.  298. 

When  a  vendor  agrees  to  execute  a 
good  and  sufficient  warranty  deed,  the 
vendee  is  entitled  to  a  warranty  deed  free 
from  all  incumbrances.  Davidson  v.  Van 
Pelt,  15  Wis.  841. 

A  covenant  to  make  a  general  war- 
ranty deed  is  performed  by  making  a 
deed  with  covenants  to  "  warrant  and 
defend  the  title ;  "  and  this  is  in  effect 
a  covenant  for  quiet  enjoyment.  Athens 
V.  Nale,  25  111.  I'Jo. 

An  agreement  by  tenants  in  common 
of  land,  to  give  "  a  good  and  sufficient 
warranty  deed  "  thereof,  is  complied  with 
by  a  deed  in  which  each  warrants  his  title 
to  his  own  share  only.  Coe  v.  Harahan, 
8  Gray,  198. 

The  following  cases  may  be  cited  as 
illustrating  the  general  subject  of  this 
chapter : — 

In  an  action  of  covenant  in  the  nature 
of  a  bill  for  specific  performance,  on  an 
agreement  to  convey  land  in  fee-simple 
free  from  incumbrances  ;  it  was  held  to  be 


sufficient  for  the  vendor  to  prove,  that  he 
had  paid  a  judgment  which  was  a  lien, 
though  satisfaction  was  not  entered  on  the 
docket ;  and  tendered  a  deed  in  fee-simple, 
with  special  warranty  ;  and  that  it  was 
not  necessary  for  him  to  tender  the  whole 
chain  of  title.  Kspy  v.  Anderson,  14  Tenn. 
308. 

Plaintiff  sold  to  the  defendant  a  tract 
of  land  for  $7,969,  payable  in  several  in- 
stalments. When  §2,000  were  paid,  he 
was  to  convey  certain  parts  of  it.  Plain- 
tiff also  agreed, —  that  be  would  see  that 
"  Stanle\-  Street  was  continued,  and 
opened  to  the  defendant's  north  line  ;  " 
and  that,  when  the  contract  had  expired, 
and  the  payments  were  all  made,  lie 
would  convey  the  premises.  In  an  ac- 
tion brought  before  all  the  {jayments  were 
due,  held,  the  plaintiff  was  not  obliged 
to  continue  and  open  Stanley  Street  until 
all  the  payments  were  made  ;  that  the 
defendant  was  not  entitled  to  raconpnumt 
for  damages  occasioned  by  non-fulfilment 
by  the  plaintiff'  of  his  engagements,  and 
that,  from  the  contract  and  circumstances, 
it  was  not  the  intention  of  the  parties, 
that  Stanley  Street  M'as  to  be  opened  in 
a  reasonable  time.  Farmers,  &c.  v.  Hunt, 
10  Barb.  514. 

A.  contracted  to  execute  to  B.  a  quit- 
claim deed  of  certain  premises,  and  after- 
wards gave  him  a  certificate,  that,  at  the 
making  of  the  contract,  he  consented  and 
agreed  he  should  take  possession  forth- 
with. Held,  B.  could  not  maintain  an 
action  against  A.  for  damages  because  a 
third  person  had  intruded  upon  a  portion 
of  the  premises,  and  kept  B.  out  of  pos- 
session, there  being  no  agreement  to  put 
B.  in  possession.  Tewksbury  v.  I.affim, 
1  Cal.  129. 

Where  a  railway  company,  purchasing 
lands,  agree  under  seal  with  the  vendor 
to  make  and  support  certain  accommoda- 
tion works,  he  cannot  claim  to  have  this 
agreement  inserted  in  the  conveyance, 
inasmuch  as  it  would  either  relate  to  a 
past  act,  or  would  be  a  superfluous  secu- 
rity for  a  future  act,  already  sufficiently 
provided  for.  Raphael  v.  Thames,  &c., 
Law  Rep.  (Eng.)  Eq.,  June,  1866,  p.  37. 


270  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    XVI. 


CHAPTER    XVI. 


TITLE    TO    THE    PROPERTY   SOLD. PARTIAL    FAILURE    OF    TITLE. 

1.  Partial  defect  of  title,  what  constitutes.  5.     When  ground  for  rescinding  the  sale. 

2.  When  it  is  no  ground  of  objection  by  9.  Whether  the  vendor  may  object  on  the 
the  vendee.                                                               ground  of  deticiency  or  excess  in   the  prop- 

4.     Cornijensation  for  partial  failure  of  title,     erty. 

1.  Questions  often  arise,  as  to  the  effect  of  a  partial  failure  of 
title  to  the  property  sold.  Such  failure  may  apply  to  the  interest 
of  the  vendor  in  the  estate  itself,  as  where  he  owns  less  than  a  fee- 
simple,  or  a  fee-simple  subject  to  incumbrance  ;  or  to  the  amount 
or  quantity  of  the  property,  as  where  only  a  part  of  the  lands  sold 
belongs  to  him.  And  it  may  depend  upon  different  combinations 
of  circumstances,  whether  the  purchaser  shall  be  allowed  to  make 
any  objection  on  these  grounds  ;  whether  he  shall  be  restricted 
to  a  proportional  dednction  from  the  agreed  price ;  or  whether  he 
may  at  his  election  wholly  rescind  the  bargain. 

2.  As  has  been  seen  (ch.  12),  Chancery  will  not"  decree  specific 
performance  of  a  contract  to  purchase,  where  the  vendor  is  unable 
to  give  a  valid  title,  unless  it  appears  from  the  contract,  that  the 
understanding  of  the  parties  was,  that  the  purchaser  should  take 
the  risk  of  the  title.^  But  specific  performance  will  be  decreed, 
when  the  vendor  is  able  to  perform  his  agreement  in  substance, 
although  there  is  a  trifling  variation  in  the  description,  or  a  trifling 
incumbrance  on  the  title,  which  cannot  be  removed,  but  which  is  a 
proper  subject  of  compensation. (a)  Thus  it  is  no  valid  objection 
to  the  title,  that  the  conveyance,*  under  which  the  vendor  holds, 
contains  a  reservation  of  mines  and  minerals  and  water  privileges, 
if  there  is  no  reason  to  suppose  they  exist.     So  the  reservation  of 

1  Winne  v.  Reynolds,  6  Paige,  407.     See  St.  Paul,  &c.  v.  Brown,  11  Miia.  356. 

(a)  It  is  a  somewhat  analogous  rule,  failure  to  make  the  deed,  when   he  has 

that,  to  make  a  vendor  liable  for  deprecia-  never  been  requested  to  do  so.     Mulliu  v. 

tion  in  the  property,  pending  the  contract.  Bloomer,  11  Iowa,  300. 
he  must  be  in  some  fault  beyond  mere 


CHAP.    XVI.]  TITLE.  —  PARTIAL    FAILURE.  271 

a  pepper-corn,  or  any  other  rent  which  is  merely  nominal,  is  not  a 
valid  objection  to  the  title  of  the  vendor,  more  especially  if  known 
to  the  vendee  ;  and  specific  performance  will  be  decreed  without 
compensation,  although  by  mistake  of  the  scrivener  they  were  not 
excepted  in  the  written  contract  of  sale.  Though  a  restriction 
upon  the  power  of  alienation,  or  the  reservation,  to  the  original 
owner,  of  a  pre-emptive  right  of  purchase  for  a  certain  time,  is  an 
incumbrance,  which  diminislies  the  value  of  the  title  ;  and  a  pur- 
chaser without  notice  will  not  be  compelled  to  take  the  premises, 
subject  thereto,  without  a  proper  allowance. 

3.  Thus  the  vendor  of  a  farm  in  the  manor  of  Rensselaerwick, 
held  under  a  lease  at  a  nominal  rent  of  a  pound  of  wheat,  with  a 
reservation  of  mines  and  minerals  and  water  privileges,  and  a  pre- 
emptive right  of  purchase ;  covenanted  to  give  the  purchaser  a 
good  and  lawful  deed.  Held,  the  rent  was  no  objection  to  the 
title  ;  and,  there  being  no  mines  or  minerals,  or  water  privileges, 
on  the  premises,  and  the  lessor  having  agreed  to  relinquish  his 
pre-emptive  right,  of  which  the  vendee  had  notice  at  the  time  of 
sale,  a  specific  performance  was  decreed.^  So  in  case  of  an  agree- 
ment to  sell  and  assign  "  the  unexpired  term  of  eight  years'  lease 
and  good-will "  of  a  public  house ;  held,  the  purchaser  could  not 
refuse  to  perform  the  agreement,  on  the  ground  that,  when  it  was 
entered  into,  there  were  only  seven  years  and  seven  months  of  the 
term  unexpired,^  So  a  purchaser  is  not  entitled  to  abatement  for 
a  deficiency  in  quantity,  where  the  particulars  describe  the  estate 
as  containing  by  estimation  a  certain  number  of  acres,  be  the  same 
more  or  less.^  More  especially  where  the  purchase  is  made  by 
metes  and  bounds,  estimated  to  contain  a  specific  quantity,  or  "  for 
more  or  less,"  and  a  gross  sum  to  be  paid  for  the  entire  tract ;  and 
the  land,  at  the  time  of  purchase,  is  of  equal  value  to  the  price 
paid ;  —  unless  there  is  some  misrepresentation  or  concealment.'* 
So,  where  land  is  sold  at  auction  in  separate  lots,  and  several  are 
purchased  by  one  person,  this  is  not  an  entire  contract ;  and, 
though  the  vendor  cannot  give  a  title  as  to  all  the  lots,  the  vendee 
cannot  rescind  the  agreement  in  toto,\n\t  must  take*  a  conveyance 
of  the  rest.^  So  the  vendor  of  a  largo  tract,  consisting  of  vari- 
ous parcels,  as  surveyed  by  the  government,  at  a  gross  price,  and 

1  Winne  v.  Reynolds,  6  Paige,  407.  •*  Ketcliiim  v.  Stout,  20  Oliio,  453. 

2  Belworth  v.  Hassell,  4  Camp.  Ca.  140.  5  "Van  Eps  v.  Schenectady,  12  Johns. 

3  Winch  V.  Winchester,  1  Ves.  &  B.  43G. 
375. 


272 


LAW  OP  VENDORS  AND  PURCHASERS.    [CHAP.  XVI. 


not  by  the  acre ;  and  guilty  of  no  fraudulent  concealment ;  is  not 
liable  for  any  deficiency  of  quantity. ^  So  when  the  land  is  de- 
scribed by  reference  to  adjoining  tenements,  and  sold  from  bound- 
ary to  boundary,  no  action  can  be  maintained  for  a  diminution  of 
price,  on  account  of  deficiency  of  quantity .^  The  distinction  is, 
that,  when  a  specified  tract  is  sold  for  a  sum  in  gross,  the  boundaries 
control  the  description  of  the  quantity  ;  and  neither  party  can 
have  a  remedy  for  excess  or  deficiency  in  quantity ;  unless  so 
great  as  to  furnish  evidence  of  fraud  or  misrepresentation.  Oth- 
erwise, where  the  mistake  is  in  the  boundaries,  and  not  in  tlie 
quantity.  So  where  the  deficiency  is  not  in  the  thing  described, 
but  in  the  ability  of  the  defendant  to  convey  the  thing  de- 
scribed.^(a) 


1  Terrell  v.  Kirksey,  14  Ala.  209. 

2  Zeringue  v.  Williams,  15  La.  An.  76. 


'^  Voorhees  v.  De  Meyer,  2  Barb.  37. 


(a)  A.  sold  to  B.  three  quarter  sections 
of  land  for  $1,000  each,  and  gave  liim  a 
title-bond  for  two  hundred  and  eighty 
acres,  and  a  deed  for  the  balance.  B. 
gave,  for  the  price,  three  notes,  for  §1,000 
each,  payable  at  different  times  ;  the  two 
first  absolutely,  and  the  last  on  condition 
of  receiving  a  full  title.  A.  afterwards 
conveyed  one  hundred  and  twenty  acres, 
transferred  all  the  notes  for  value,  became 
insolvent,  and  left  the  State  without  mak- 
ing or  being  able  to  make  title  to  the 
remaining  quarter  section.  Held,  the  con- 
dition of  the  last  note  operated  as  an 
indemnity  against  any  damage  arising  to 
B.  from  not  receiving  such  title ;  and,  as 
the  title  was  not  proved  defective,  that 
the  hond-Jide  pa\anent  by  B.  of  the  note 
first  due,  and  afterwards  of  the  conditional 
note,  with  notice  of  the  transfer  of  the 
second  note,  did  not  entitle  him  to  relief 
in  equity  against  the  latter  note.  Graham 
V.  Nesmith,  18  Ala.  763. 

Copyhold  and  freehold  lands,  \ymg 
intermixed  and  undistinguishable,  were 
sold,  witii  the  timber.  The  vendor  was 
not  to  be  bound  to  distinguish  the  free- 
holds from  the  copyholds,  and  the  timber 
was  to  be  taken  at  a  speci^ed  valuation 
of  the  timber  on  each  lot.  A  deposit  was 
paid  of  £10  per  cent.  It  was  also  stipu- 
lated, that,  in  case  of  delay  in  the  comple- 
tion of  the  purchase,  interest,  at  .£5  per 
cent,  should  be  payable  on  the  whole  price. 
Held,  an  entire  contract,  —  not  two  con- 
tracts, one  for  the  sale  of  land,  and  another 
of  timber.  Crosse  v.  Lawrence,  10  Eng. 
Law  &  Eq.  7.  Also,  that  the  purchaser  was 
not  entitled  to  any  abatement,  though  he 


could  not  cut  a  single  tree,  not  being  able 
to  distinguish  any  one  tree  as  standing  on 
freehold  ground.  Also,  that  in  case  of  one 
lot  sold  under  the  same  conditions  and 
particulars,  and  which  consisted  entirely 
of  copyholds,  the  purchaser  was  equally 
bound  to  pay  the  stipulated  price  for  the 
timber,  although  he  could  not  cut  any  of 
it.     Ibid. 

An  estate,  consisting  of  fen-land,  and 
so  described  in  the  particular  of  sale,  was 
charged  by  a  local  but  public  act  of  Par- 
liament with  drainage  and  embanking 
taxes,  of  which  the  purchaser  had  no 
express  notice.  Held,  that  he  was  not 
entitled  to  a  compensation  for  those  taxes. 
Barrandos  v.  Archer,  2  Simons,  433.  So 
an  injunction  was  granted,  to  stay  an 
action  against  the  auctioneer  for  the  de- 
posit, although  the  estate  sold  was  repre- 
sented as  freehold,  and  turned  out  to  be 
almost  all  leasehold,  and  although  there 
had  been  great  delay  in  making  out  the 
plaintiff's  title.  Eordyce  v.  Eord,  4  Bro. 
C.  C.  494.  But  see  Drewe  v.  Corp,  9 
Ves.  368. 

A  piece  of  ground  being  sold  at  auc- 
tion, according  to  certain  metes  and 
bounds,  which  were  shown  to  the  pur- 
chaser before  his  purchase,  be  the  same 
more  or  less  ;  he  is  not  entitled  to  com- 
pensation for  a  deficiency  ;  although  the 
previous  advertisement  described  tlie  ten- 
ement as  containing  more  than  the  actual 
quantity.  So,  notwithstanding  a  subse- 
quent agreement  under  seal  (written  by 
the  purchaser,  and  signed  by  the  vendor, 
for  the  purpose  of  binding  the  vendor  to 
make  a  title),  in  which  the  terms  of  sale 


CHAP.    XVI.]  TITLE   TO   THE    PROPERTY   SOLD,    ETC.  273 

4.  Although  a  Court  of  Equity  docs  not  ordinarily  exercise  its 
jurisdiction  by  awarding  damages,  yet  in  tiie  class  of  cases  now 
under  consideration,  for  the  purpose  of  effecting  substantial  justice 
between  the  parties,  it  sometimes  departs  from  its  usual  course  of 
procedure,  and,  instead  of  rescinding  a  contract  for  partial  failure 
to  fulfil  it,  seeks  to  indemnify  the  purchaser  by  decreeing  a  fair 
and  equitable  compensation  for  his  loss.  It  has  been  said,  the 
plaintiff  in  a  bill  for  specific  performance  is  not  entitled,  generally, 
to  damages  for  non-performance,  to  bo  ascertained  by  an  issue,  or 
a  reference  to  tlie  Master.^  But  the  prevailing  doctrine  now  is, 
that  specific  performance  will  be  decreed  upon  the  princi})le  of 
cotnpensation  and  indemnity,  where  there  is  no  suhstantial  deviation 
from  the  contract.^  Thus  a  small  incumbrance,  which  may  be  the 
subject  of  compensation,  is  no  objection  to  a  specific  performance.^ 
An  incumbrance,  for  less  than  an  instalment  of  the  price  wliich  has 
become  due,  justifies  only  the  suspension  of  payment,  and  an  in- 
junction, to  this  extent.^  So  quit  rents,  being  incidents  of  tenure, 
are  proper  subjects  of  compensation.  It  has  been  doubted  whether 
the  same  principle  applies  to  rent  charges,  which  are  not  incidents 
of  tenure ;  though  the  Court  has  allowed  them,  when  small,  to  be 

1  Todd  V.  Gee,  17  Ves.  273.  3  Quest  v.  Homfray,  5  Ves.  818. 

2  Horniblow  v.  Shirley,  13  Ves.  81 ;  *  Walker  v.  CucuUu,  15  La.  An.  689. 
Dyer  v.-  Hargrave,  10  Ves.  505. 

are  referred  to,  but  the  qiiantity  mentioned  that  the  clear  profits  exceeded  .£200  a 
in  the  advertisement  is  specified,  omitting  year.  Held  (on  a  bill  by  the  purchaser 
the  words  "more  or  less;"  the  vendor  for  specific  performance,  with  compensa- 
may  still  prove  the  terms  of  sale  by  parol  tion  in  respect  of  the  misstatement  as  to 
testimony.  Grantland  v.  Wight,  2  Munf.  the  fines),  he  could  not  claim  compcnsa- 
179.  tion,  inasmuch  as  the  annual  profits,  which 
Trustees  for  sale  of  a  manor  described  constituted  the  substantial  value,  far  ex- 
it in  advertisements,  and  particulars  and  ceeded  the  amount  stated.  Wliite  v. 
conditions  of  sale,  as  a  manor  in  which  Caddon,  8  Clark  &  Finnelly,  7GG.  In 
tlie  fines  were  arbitrary ;  adding,  that  the  case  of  sale  by  a  trustee  in  chancery,  a 
clear  profits,  on  an  average  of  the  last  claim  was  made  for  deduction  of  price  for 
eight  years,  had  been  £150  per  year  ;  and  fifty-tln-ee  acres'  deficiency  in  quantity  of 
it  was  one  of  the  conditions  of  sale,  that,  if  land  and  defects  in  niacliinery,  making 
there  should  be  any  error  or  misstatement  part  of  the  property  sold.  The  property 
in  the  particulars,  the  vendors  or  purchaser,  was  thus  advertised:  "That  valuable 
as  the  case  might  happen,  should  pay  or  cotton  factory  known  as  the  IMiaMiix  Fac- 
allow  a  proportionate  value,  according  to  tory,  with  187  acres  of  land,  more  or  less, 
the  average  of  the  whole  purchase-money,  attached  thereto.  Tiie  machinery  is  in 
as  a  compensation  either  way.  After  the  good  running  order,  and  now  in  use. 
sale,  it  was  found  that  by  the  custom  of  Persons  desiring  to  examine  the  i)remises 
the  manor  arbitrary  fines  were  payable  can  leave  Baltimore  in  the  morning  cars, 
only  on  alienation,  and  that,  on  the  death  and  return  the  same  day."  There  was 
of  a  tenant,  his  customarj-  heir  paid,  upon  no  allegation  of  fraud.  Held,  tlie  pur- 
admittance,  a  small  fixed  sum,  and  the  chaser  was  not  entitled  to  a  deduction, 
widow  was  admitted  to  her  free  bench  Slothower  v.  Gordon,  23  Md.  10. 
without  any  payment.     It  was  also  found 

18 


274  LAW  OF  VENDOES  AND  PURCHASERS.     [CHAP.  XVI. 

subjects  of  compensation.^  So,  if  there  be  a  small  deficiency  in  the 
land,  a  reference  may  be  made  to  the  Master  to  ascertain  it,  and 
report  the  value.^  So  where  the  objection  by  a  purchaser  applies 
only  to  a  small  part  of  the  estate.^  Thus,  where  a  tenant  in  pos- 
session purchased  the  property,  which  was  represented  to  be  forty- 
six  feet  in  depth,  but  turned  out  to  be  thirty- three  only  ;  held,  he 
was  entitled  to  an  abatement.'^(a)  So  where  the  title  is  good 
except  as  to  a  small  portion,  the  loss  of  which  would  not  materially 
affect  the  value  of  the  rest ;  equity  will  not  rescind  the  contract, 
but  will  credit  upon  the  bonds  the  value  of  such  portion.^  So  a 
purchaser  of  two  lots  cannot  refuse  to  take  one  because  a  good 
title  is  not  shown  to  the  other.^  So  the  general  rule  of  specific 
performance,  that  the  purchaser  shall  have  what  the  vendor  can 
give,  with  an  abatement  of  price  for  deficiency  in  the  quantity,  was 
enforced  against  trustees  for  infants,  upon  the  mere  mistake  of 
their  agent,  without  fraud,  &c. ;  but  the  relief  adapted  to  the  jus- 
tice of  the  case  ;  viz.,  the  purchase  being  of  wood  upon  a  gross 
valuation,  without  regard  to  the  quantity  of  land,  an  abatement  for 
a  deficiency  of  quantity,  from  erroneously  inserting  the  hedges  and 
fences  not  included  in  the  purchase,  was  directed  with  reference  to 
land,  merely,  not  wood-land."  So  where  there  was  a  defect  of  title 
to  a  small  piece  of  land,  over  which  lay  the  approach  to  a  house 
and  other  land,  the  main  subject  of  purchase ;  and  the  contract 
provided  for  compensation,  in  case  of  any  omission  or  mistake  in 
the  description :  held  matter  of  compensation.^  So,  in  case  of  a 
contract  to  purchase  lots,  to  two  of  which  a  title  could  not  be  made, 
and  the  others  having  deteriorated  in  value  ;  if  the  value  of  the 
remaining  lots  is  not  affected  by  that  deterioration,  a  specific  per- 
formance shall  be  decreed  as  to  all  but  two.^     So  where  there  was 

1  Esdaile  v.  Stephenson,  1  Sim.  &  Stu.         ^  Lewin  v.  Guest,   1  Russ.  325.     See 
122.  Roots  V.  Dormer,  4  Barn.  &  Ad.  77. 

2  Cannon  v.  Mitchell,  2  Desaus.  320.  ^  Hill  v.  Buckley,  17  Ves.  394. 

3  M'Queen  v.  Farquliar,  11  Ves.  467.  ^  Freer  v.  Hess,  17  Eng.  Law  &  Eq. 

4  King  V.  Wilson,  (J  Beav.  124.  154. 

5  Tomlinson   v.   Savage,  6   Ired.   Eq.  ''  Poole  v.  Siiergold,  2  Bro.  C.  C.  118 ; 
480.  1  Cox,  273. 

(a)  The  true  criterion  of  abatement  is  neighborhood  of  the  property,  to  purchase 

not  the  ratio  of  tlie  quantities  real   and  eitlier  tliat  or  another  estate,  at  his  discre- 

represented,  but  the  ditterence  of  location,  tion,  for  that  price,  and  tlie  agent  purchased 

size,  improvements,  value,  purposes,  Slc.  tliis  lot.     Held,  the  riglit  of  the  vendee  to 

Fall'w.  McMurdy,  3  Met.  (Ky.),  364.  recover  for  a  failure  in  quantity  was  not 

Previous  to  purchase,  a  vendee  received  at  all  affected   by    the   exercise    of  this 

a  note  from  the  vendor,  stating  tlie  price,  agency,    which  was  limited  only  to  the 

and  that  the  lot  contained  six  acres.    The  discretion  of  a  choice.     Ibid, 
vendee  then  wrote  to  his  agent  in  the 


CHAP.  XVI.]  TITLE    TO    THE   PROPERTY   SOLD,    ETC.  275 

an  auction  sale  of  lots,  under  condition  tliat  they  were  subject  to 
the  perpetual  payment  of  XI 20  a  year  to  the  curate  of  N.,  Imt  that 
this,  and  the  perpetual  annual  payment  of  £20  to  the  hospital  of 
C,  were  in  future  to  be  charged  upon  and  paid  by  the  purchaser 
of  lot  1  only  ;  held,  the  purchasers  of  the  other  lots  were  entitled, 
not  to  an  absolute  discharge,  but  to  an  indemnity  from  the  pur- 
chaser of  lot  1.^  So  where  it  is  provided  by  the  conditions  of  sale 
by  auction,  that,  if  any  mistake  be  made  in  the  dcscriptiun  of  the 
premises,  or  any  other  material  error  shall  appear  in  the  particu- 
lars of  sale,  such  mistake  or  error  shall  not  annul  the  sale,  but  a 
compensation  shall  be  made ;  the  vendee  is  not  released  by  a  mis- 
description in  the  particulars,  obvious,  on  inspection  of  the  prem- 
ises, unless  wilful  and  designed.^  So  an  advertisement  described 
the  estate  as  all  freehold,  though  a  small  part  was  held  at  will : 
after  execution  of  articles,  a  treaty  for  an  exchange  of  that  part 
took  place ;  pending  which,  at  the  time  appointed  for  completing 
the  purchase,  the  purchaser  took  possession  forcibly  ;  but  proceeded 
in  the  treaty  afterwards,  till  he  finally  refused  to  agree  to  the  pur- 
chase. On  a  bill  of  the  vendor,  the  purchase-money  was  decreed 
to  be  paid,  with  four  per  cent  from  the  time  it  ought  to  be  paid  ; 
but  an  inquiry  was  directed,  what  ought  to  have  been  the  compen- 
sation at  that  time,  that,  with  the  outgoing,  to  be  deducted.^  So 
it  has  been  held,  that,  where  part  of  the  premises  are  subject  to 
tithes,  though  represented  as  tithe-free ;  the  purchaser,  if  he 
chooses  to  take  the  purchase,  has  a  right  to  compensation,  but  not 
to  compel  the  vendor  to  purchase  the  tithes.*  In  another  case  it 
is  decided,  that  the  purchaser  of  an  estate,  sold  as  tithe-free,  can- 
not be  compelled  to  take  it  subject  to  tithe,  on  terms  of  compensa- 
tion ;  but,  an  estate  of  a  hundred  and  forty  acres  being  sold  under 
a  decree,  and  the  particulars  stating  about  thirty-two  acres  to  be 
tithe-free,  and  no  evidence  of  exemption  having  been  produced  on 
the  reference  of  the  title,  the  Master  was  directed  to  certify  the 
proper  amount  of  compensation. ^(a)     So  specific  performance  of  a 

1  Cassamajor  v.  Strode,  1  Wils.  C.  C.  '  Calcraft  v.  Roebuck,  1  Ves.  22L 
428 ;  2  Swanst.  347.                                             *  Todd  v.  Gee,  17  Ves.  273. 

2  Wright  V.  WUson,  1  Moo.  &  Rob.  207.         5  Binks  v.  Rokeby,  12  Swanst.  226. 

(a)  Even  where  the  iDrincipal  subject  meadow,  and  the  possible  conversion  from 

of  contract  was  all  the  corn  and  hay  tithes  arable,  not   distinctly  appearinjz;,  the  in- 

of  a  parish,  and  half  of  the  latter  was  junction   against    recovering  the  deposit 

allotted  to  the  vicar,  and  the  other  half  was  continued  after   answer.     Drewe  v. 

commuted  for  a  customary  payment ;  the  Hanson,  6  Ves.  G7tj. 
nature   of  that  payment,   the   extent  of 


276  LAW    OF   VENDOES   AND    PURCHASERS.  [CHAP.    XVI. 

sale  was  decreed,  with  compensation,  notwithstanding  a  variance 
from  the  description,  though  a  minute  examination  might  have 
discovered  the  defects ;  as  in  the  state  of  the  house  and  the  culti- 
vation of  the  land.  Otherwise  as  to  a  variance  from  the  description, 
as  lying  within  a  ring-fence;  this  being  an  object  of  sense;  and; 
upon  the  evidence,  the  purchaser  being  apprised  of  it.^  So  a  res- 
ervation of  salt-works,  mines,  <fec.,  in  1704,  with  a  right  of  entry, 
though  there  was  no  instance  of  any  claim,  and  the  title  had  been 
transferred  in  17(31,  without  such  reservation,  upon  the  usual  cov- 
enants ;  was  held  an  objection,  giving  a  right  to  compensation ; 
the  purchaser  not  insisting  upon  it  further.^  So  a  contract  hav- 
ing been  made  for  sale  of  an  estate,  it  afterwards  appeared  that 
there  were  several  out-goings  from  tlie  estate,  which  were  not  dis- 
closed :  yet,  being  matters  which  lie  in  compensation,  held,  the 
contract  should  be  executed  with  an  allowance.^  So  compensation 
was  decreed  for  the  dry-rot  in  a  house  and  premises,  upon  repre- 
sentations of  the  vendor  to  the  purchaser  as  to  the  state  of  repairs  ; 
he  relying  upon  such  representations,  and  stating  to  the  vendor 
that  he  did  not  employ  a  surveyor,  for  that  reason.^  So  where  a 
tract  of  land  is  sold,  as  containing  a  given  quantity  of  acres,  but 
really  includes  a  less  quantity  ;  a  deduction  will  be  made  ;  unless 
the  deficiency  be  such  as  would  have  prevented  the  contract,  if 
known  at  the  time  of  the  purchase ;  that  is,  the  deficiency  appear- 
ing to  be  in  that  part  which  was  the  chief  inducement  to  pur- 
chase.°(a) 

1  Dyer  v.  Hargrave,  10  Ves.  505.  *  Grant  v.  Munt,  Coop.  173. 

2  Seaman  v.  Vawdrey,  16  Ves.  390.  ^  Anderson  v.  Foulke,  2  Harr.  &  G. 

3  Rowland  v.  Norris,  1  Cox,  59.  346 ;  Ketchura  v.  Stout,  20  Ohio,  453. 

(a)  By   the   particulars   of  a  sale  by  eighty-nine  acres,  and  twenty -nine  perches, 

auction,  at  which  the  defendant  was  de-  and  lots  2,  3,  and  4,  only  three  hundred 

clared  the  purchaser  of  lots  1,  2,  3,  and  4;  and  ten  acres,  three  roods,  and  eighteen 

lot  1  was  described  as  comprising  seventy  perches.     The  error  had  arisen  from  the 

acres,  twenty-four  perches,  more  or  less,  adoption  of  a  former   surveyor's   report, 

and  lots  2,  3,  and  4,  as  comprising  together  Held,  the  purchaser  was  bound  to  make 

three  hundred  and  twenty -one  acres,  two  compensation  to  the  vendors,  on  account 

roods,  thirty  perches,  more  or  less  ;  and  of  lot  1,  and  entitled  to  receive  compensa- 

by  the  conditions  of  sale  it  was  provided,  tion  on  account  of  lots  2,  3,  and  4.     LesHe 

amongst  other  things,  that  any  mistake  v.  Tompson,  5  Eng.  Law  &  Eq.  166. 
or  error  in  the  description  of  the  property  A  vendor  agreed  to  sell  and  convey 

should  not  annul  the  sale,  but  should  be  "lots  Nos.  9  and  11  in  No.  20  in  great  lot 

the  subject  of  compensation,  to  be  given  No.  34,  one  hundred  and  eighty-seven  and 

or  taken,  as  the  case  might  require.     A  a  half  acres  for  $750  ;  "  supposing  that  lot 

map  or  plan  was  annexed  to  the  particu-  No.  11  contained  one  hundred  and  forty- 

lars,  in  which  the  ditierent  lots  were  dis-  three  and  a  half  acres ;   but  through  an 

tinguished  by  diflerent  colors.     After  the  error   of  the    surveyor,  wlio   subdivided 

sale  it  was  found,  that  lot  1  comprised  great  lot  No.  34,  in  extending  his  survey 


CHAP.    XVI.]         TITLE   TO    THE   PROPERTY    SOLD,   ETC.  277 

5.  Although  the  rule  above  stated  seems  to  be  well  established 
by  the  weight  of  authority  ;  it  has  been  held  in  some  cases,  tliat 
equity  will  not  compel  a  specific  performance,  unless  the  vendor 
can  make  a  good  title  to  all  the  land  sold.^  A  purchaser  is  said  to 
be  entitled  to  the  specific  real  estate  which  he  contracts  for^  and  not 
to  be  compellable  by  a  Court  of  Chancery  to  accept  a  part  only, 
with  a  compensation  for  the  deficiency .^  As,  for  instance,  to  take 
six  undivided  seventh  parts  of  an  estate,  when  he  has  contracted 
for  the  entirety.^  Or,  it  seems,  nine-sixteenths  instead  of  the 
entirety  ;  especially  where  there  is  a  lien  on  the  estate  for  a  debt 
nearly  equal  to  the  whole  of  the  purchase-money."*  So  in  case  of  a 
purchase  under  a  decree  of  two-sevenths  of  an  estate  in  one 
lot ;  there  being  a  good  title  to  only  one-seventh,  held,  the  pur- 
chaser was  not  bound. ^  So  where  a  contract  was  made  to  convey 
ten  lots  of  land,  and  a  tender  of  a  deed  for  eight  whole  lots,  and 
an  equal  undivided  half  of  four  other  lots;  held,  not  a  perform- 
ance.^ So  although  admitted  to  be  generally,  though  not  univer- 
sally, true,  that  a  purchaser  may  take  what  he  can  get,  with 
compensation  for  what  he  cannot  have ;  it  has  been  questioned 
whether  that  is  ever  done,  without  an  express  undertaking  on  his 
part,  to  do  wliat  the  Court  shall  order.'^  So  it  is  said,  the  doctrine 
of  compensation  has  been  carried  too  far.  It  is  not  to  prevail,  un- 
less the  party  will  substantially  have  that  for  which  he  contracted.^ 
So  that  small  mistakes  or  inaccuracies  in  a  contract  are  the  suljject 
of  compensation ;  but  that  has  been  extended  to  a  great  length.^ 
And  in  a  late  case  it  is  held,  that  incumbrances,  on  land  to  be  sold 
with  a  good  title,  must  be  removed  before  the  day  fixed  for  per- 
formance ;  it  is  not  enough  that  the  seller  offers  to  remove  them 

1  Hepburn   v.   Auld,    5    Cranch,    262,  ^  RofFey  v.  Rliallcross,  4  Madd.  227. 

275;  Finley  v.  Lynch,  2  Bibb,   566  ;  Ty-  6  Roy  v.  Willink,  4  Sandf.  Ch.  525. 

ree  v.  Williams,  3  Bibb,  366.  '  Paton   v.   Roy^ers,   1   Ves.  &  Beam. 

■•2  Cunningham  v.  Sharp,   11   Humph.  851 ;  Halsey  v.  Grant,  13  Ves.  75. 

116.  8  Alley  v.  Deschamps,  13  Ves.  225. 

3  Dalby  v.  Pullen,  3  Sim.  29.  9  Mortlock  v.  BuUer,  10  Ves.  292. 

*  Wheatley  v.  Slade,  4  Sim.  126. 

beyond  the  north  boundary  of  that  lot,  On  a  bill  by  the  assignees  of  tlie  vendor 
whereby  he  included  with  lot  No.  11  of  for  specific  performance ;  held,  that  it  was 
his  subdivision  forty-three  and  a  half  acres  a  case  of  mutual  mistake,  in  relation  to 
of  a  gore  lying  north  of  that  lot ;  lot  No.  the  quantity  of  land  contained  in  the  two 
11  really  contained  but  one  hundred  acres,  lots;  and  a  decree  was  made,  directing  a 
and  the  quantity  embraced  in  lots  9  and  specific  performance,  by  tlie  vendor,  so 
11  fell  short  of  the  agreement  forty-three  far  as  he  was  able  to  perform,  and  provid- 
and  a  half  acres  ;  by  reason  of  which  ing  for  an  abatement  from  the  purchase- 
error,  the  vendor  was  unable  to  make  a  money  on  account  of  the  deficiency, 
good  title  to  the  whole  quantity  of  land.  Voorhees  v.  De  Meyer,  2  Barb.  37. 


278  LAW  OP  VENDORS  AND  PURCHASERS.     [CHAP.  XVI. 

if  the  buyer  will  complete  the  purchase  ;  the  buyer's  refusal  being 
based  solely  on  the  defects  of  title.  If  the  seller  cannot  make  a 
title,  the  buyer  need  not  tender  tlie  money,  and  demand  a  deed, 
unless  he  seeks  to  recover  damages  for  failure  to  convey ;  he  may, 
without  more,  treat  the  contract  as  rescinded.  And  the  refusal  of  a 
purchaser  of  land  to  accept  it,  on  account  of  a  specified  incum- 
brance, may  avoid  the  necessity  for  tender  of  a  deed,  but  is  not  a 
waiver  of  other  defects  of  title. ^ 

6.  In  some  cases,  as  has  been  seen,  the  Courts  have  laid  down 
certain  principles,  upon  which  they  will  proceed,  in  determining 
whether  a  purchaser  is  entitled  to  a  partial  performance  of  the  con- 
tract, with  compensation  for  the  deficiency,  where  the  vendor  has 
only  a  limited  interest  in  the  estate  sold.^  In  other  cases,  the 
Courts  strongly  set  forth  the  difficulty  of  decreeing  a  partial  per- 
formance in  such  case.^  It  is  held,  however,  that  the  Court  will 
not  upon  motion  determine,  whether  several  lots,  forming  part  of 
one  estate  and  bought  at  the  same  sale  by  one  purchaser,  are  or 
are  not  so  intimately  connected  in  use  and  enjoyment,  that  the 
failure  of  title  as  to  one  will  furnish  a  defence  against  specific  per- 
formance as  to  the  rest.  Such  an  objection  raises  a  question  of 
facts,  which  ought  either  to  be  put  in  issue  upon  the  pleadings,  or 
be  the  subject  of  a  special  reference  to  the  Master.^  So  it  is 
held,  that  the  Court  must  be  affirmatively  and  clearly  satisfied, 
that  compensation  will  effect  substantial  justice,  before  making 
a  decree  therefor.  Thus  a  bill  was  filed  for  specific  performance 
of  a  contract  for  an  exchange  of  lands,  which  the  defendant 
had  refused  to  perform,  on  the  ground  of  want  of  title  to  a  small 
proportion  of  the  land  agreed  to  be  conveyed  to  him.  The 
plaintiff  tenders  a  full  and  adequate  compensation,  to  be  ascer- 
tained by  reference  to  the  Master.  General  demurrer,  for  want  of 
equity.  Demurrer  allowed,  because  the  bill  did  not  clearly  show, 
that  the  subject-matter  of  the  suit  was  one  palpably  and  obviously 
matter  for  compensation,  and  capable  of  being  compensated.^  So 
where  a  party,  acting  as  the  absolute  owner  of  property,  and  being 
absolute  owner  of  part,  and  of  the  other  part  only  tenant  for  life, 
with  a  power  of  sale,  at  his  request  and  by  his  direction,  vested  in 
trustees,  contracted  to  sell  the  whole  ;  upon  a  bill  by  the  purchaser 

1  Morange  v.  Morris,  34  Barb.  311.  *  Cassamajor  v.  Strode,  2  Myl.  &  Kee. 

2  Thomas  v.  Bering,  1  Kee.  729.  724. 

3  Graham  v.  Oliver,  3  Beav.  124.  5  Bowyer  v.  Bright,  13  Price,  698. 


CHAP.    XVI.]  TITLE   TO    THE    PROPERTY   SOLD,   ETC.  279 

for  specific  performance,  an  inquiry  was  directed,  "  wlictlier  tlic 
defendant  could  make  a  good  title,  or  could,  by  application  to  the 
trustees,  procure  a  good  title  to  be  made."  ^ 

7.  In  conformity  with  these  views,  it  has  been  held  that  specific 
performance  will  not  be  decreed  upon  the  principle  of  compensa- 
tion and  indemnity,  in  case  of  misdescription  of  the  quantity  of 
land,  in  regard  to  the  acres  being  statute  acres  or  customary.  This 
is  not  matter  of  compensation,  but  a  ground  for  setting  aside  the 
sale.^  So  no  compensation  will  be  ordered  in  a  case  of  great  inten- 
tional misrepresentation  ;  although  so  provided  by  the  conditions 
of  sale,  in  case  of  "  any  error  or  misstatement  "  in  the  particulars.^ 
Thus,  by  particulars  of  sale,  lot  13  was  described  as  building- 
ground,  and  the  adjoining  lot  12  as  a  villa,  subject  to  liberty 
for  the  purchaser  of  lot  1  to  come  on  the  premises,  to  repair 
drains,  &c.,  as  reserved  in  lot  7.  The  reservation  in  lot  7  re- 
ferred to  a  lease,  which  gave  the  occupier  of  that  and  several 
adjoining  lots,  composing  a  row  of  houses,  a  carriage-way  in 
common,  in  front  of  the  lots,  and  a  footway  at  the  back,  and 
also  a  footway  over  lot  13,  The  particulars  contained  plans, 
showing  the  carriage-way  and  the  footway  at  the  back,  but  not 
that  over  lot  13.  But  they  stated  that  the  lease  of  lot  7  might 
be  seen  at  the  vendor's  office,  and  would  be  produced  at  the  sale. 
Plaintiff  having  purchased  lots  12  and  13  by  one  contract,  in  igno- 
rance of  the  footway  over  lot  13  ;  held,  he  might  rescind  the  con- 
tract.* So  A.  paid  a  deposit  upon  a  contract  for  the  purchase  of 
the  lease,  &c.,  of  a  public  house.  It  being  afterwards  discovered 
that  the  house  was  comprised  with  another  in  an  original  lease, 
under  which  the  lessor  had  a  right  to  re-enter  for  breach  of  cove- 
nants, in  respect  of  either  house  ;  held,  that  A.  was  not  bound  to 
accept  the  title  with  an  indemnity,  but  might  recover  back  the 
deposit  and  expenses  of  investigating  the  title.^  So  the  purchase 
of  several  lots  at  an  auction,  by  one  person,  is  an  entire  contract ; 
especially  if  adjoining,  and  more  conveniently  occupied  together  ; 
and,  if  the  seller  fails  in  making  a  title  to  any  one  of  them,  the 
purchaser  may  rescind  for  the  whole  purchase.^  So,  it  seems, 
where  one  person  is  reported  purchaser  of  several  lots  before  the 

1  Graham  v.  Oliver,  3  Beav.  124.  5  Blake  v.  Phinn,  3  Mann.  Grang.  & 

2  Price  V.  North,  2  You.  &  Coll.  620.  Scott,  976. 

3  Stewart  v.  Attiston,  1  Meri.  20.  «  Chambers   i--.    Griffitlis,    1    Esp.    Ca. 
*  Dykes  v.  Blake,  4  Bing.  N;C.  4G3.  149  ;  Gibson  v.  Spurrier,  Peake,  49. 


280  LAW   OF   VENDORS    AND    PURCHASERS.  [CHAP.    XVI. 

Master,  if  the  biddings  are  opened  as  to  one,  he  shall  have  an  op- 
tion to  open  them  as  to  all.^  So  the  defendant  having  sold  and 
conveyed  land  to  the  plaintiff,  suggesting  that  he  had  a  title,  but 
in  fact  not  being  entitled  to  a  part,  the  same  being  an  encroach- 
ment from  a  common ;  though  no  eviction  has  happened  or  been 
threatened,  a  bill  lies  to  set  aside  the  conveyance,  and  for  a  return 
of  the  purchase-money  and  all  expenses.^  So  specific  performance 
of  a  purchase  was  refused,  no  good  title  being  made  to  a  part  of 
the  estate,  which,  though  very  small  in  proportion  to  the  whole, 
was  essential  to  its  enjoyment ;  and  the  defendant,  who  was  let 
into  possession,  being  afterwards  turned  out  by  the  plaintiffs.^  So 
it  has  been  held,  that  a  purchaser  cannot  be  compelled,  upon  the 
principle  of  compensation,  to  take,  under  a  contract  for  a  freehold 
estate,  a  leasehold,  though  a  very  long  term.^  So  the  Court  re- 
fused to  decree  specifig  performance  of  an  agreement,  made  twelve 
years  before  the  hearing,  to  purchase  the  fee-simple  of  certain 
lands,  and  also  the  right  to  impound  the  water  of  a  river,  and 
divert  a  stream  from  it,  because  the  vendor,  though  seised  in  fee 
of  the  lands,  had  only  a  lease  for  ninety-nine  years  of  the  other 
subjects  of  the  contract,  and  had  not,  as  against  some  of  the  pro- 
prietors of  land  on  the  banks  of  the  river,  a  right  to  divert  the 
water  ;  and  because  the  purchaser  had  entered  into  the  contract, 
for  the  purpose  of  erecting  a  manufactory  to  be  wrought  by  the 
water.^  (a) 

1  Boyer  v.  Blackwell,  3  Anstr.  657.  *  Drewe  v.  Corp,  9  Ves.  368.    But  see 

2  Edwards  v.  M'Leay,  Coop.  318.  Fordvce  v.  Ford,  4  Bro.  494. 

3  KnatchbuU  v.  Grueber,  1  Madd.  153.  &  Wright  v.  Howard,  11  Sim.  &  Stu.  190. 

(«)  Sale    of   a  leasehold  interest,   de-  day  named  for  completing  the  purchase, 

scribed  in  the  particulars  as  held  for  a  and  before  action  brought  by  the  vendee, 

term  of  twenty-three  years,  at  a  rent  of  tlie  vendor  procured  a  lease  of  the  yard 

.£55,  and  as  comprising  a  yard.     One  of  for  tlie  term  to  the  vendee,  and  offered  it 

the    conditions   was,    that,    if   any   mis-  to  him.     Dobell  v.  Hutchinson,  3  Ad.  & 

take  should  be  made  in  the  description,  Ell.  355. 

or  any  other  error  whatever  should  The  particulars  of  sale  of  certain  lease- 
appear  in  the  particulars  of  the  estate,  hold  premises  in  Covent  Garden  stated, 
such  mistake  or  error  should  not  annul  that  under  the  original  lease  "  no  offen- 
or  vitiate  the  sale,  but  a  compensa-  sive  trade  was  to  be  carried  on,  and  that 
tion  should  be  made,  to  be  settled  by  ar-  the  premises  could  not  be  let  to  a  coffee- 
bitration.  The  yard  was  not,  in  fact,  house  keeper  or  working  hatter."  The 
comprehended  in  the  property  held  for  lease,  in  fact,  prohibited  tlie  business  of 
the  term  at  £55,  but  from  year  to  year,  brewer,  baker,  sugar-baker,  vintner,  vict- 
at  an  additional  rent.  It  was  also  essen-  nailer,  butcher,  tripe-seller,  poulterer, 
tial  to  the  enjoyment  of  the  other  prop-  fishmonger,  cheese-seller,  fruiterer,  herb- 
erty.  It  did  not  appear  that  the  vendor  seller,  coffee-house  keeper,  working  hat- 
knew  of  the  defect.  Held,  this  defect  ter,  and  many  others,  and  the  sale  of  coals, 
avoided  the  sale,  and  was  not  a  mistake  potatoes,  or  any  provisions.  Held,  the 
to  be  compensated  for,  although,  after  the  discrepancy  entitled  a  pui-chaser  to  re- 


CHAP.    XVI.]  TITLE   TO    THE   PROPERTY   SOLD,    ETC. 


281 


8.  Where,  in  articles  of  agreement  under  a  penalty,  there  are 
mutual  covenants  to  do  certain  acts,  and  also  a  covenant  which 
goes  to  the  whole  consideration  on  each  side  ;  to  an  action  for  the 
penalty,  the  defendant  may  plead  in  bar  a  breach  by  the  plaintiff 
of  the  covenant  which  goes  to  the  whole  consideration.  Thus  an 
agreement  for  the  sale  of  lands  provided,  with  penalty,  that  the 
seller  should  take  in  part  payment  certain  lands  of  the  buyer,  and 
that  all  timber  trees,  then  upon  any  of  the  estates,  should  be 
valued  by  appraisers,  and  paid  for  by  the  respective  purchasers  at 
a  given  time.  To  an  action  of  debt  by  the  seller  for  the  penalty,  the 
buyer  may  plead  that  the  plaintiff,  before  the  time,  cut  down  trees, 
and  thereby  rendered  himself  unable  to  perform  the  agreement.^ 

9.  While  the  vendee  may  object  to  completion  of  the  sale,  on  the 
ground  of  deficiency  in  the  property  sold ;  the  question  sometimes 
arises  whether  the  vendor  can  raise  a  similar  objection,  where  the 
property  claimed  either  falls  short  of  or  exceeds  that  contracted  for. 
Upon  this  subject  it  has  been  held,  that  a  vendor,  representing  and 
contracting  to  sell  the  estate  as  his  own,  cannot  object  that  he  has 
only  a  partial  interest.  The  purchaser  is  entitled  to  as  much  as 
he  can  have,  and  an  abatement.^  So  defect  of  title  to  a  consider- 
able part  of  the  estate,  though  a  good  objection  by  the  imrchaser  to 
a  specific  performance,  is  not  such  by  the  vendor. ^(^ci) 

10.  It  has  been  held,  that  the  vendor,  as  well  as  the  vendee, 
may  have  the  benefit  of  the  rule  of  compensation  in  equity,  where 

1  Duke  of  St.  Albans  v.  Shore,  1  H.  3  Western  v.  Russell,  3  Ves.  &  Beam. 
Blackf.  270.                                                       187. 

2  Mortlock  V.  Buller,  10  Ves.  292. 

scind  his  contract.      Flight  v.  Booth,  1  to   perform   the   contract,   and   the    heir 

Bing.  N.C.  370.  could  not  enforce  it.     Collier  v.  Jenkins, 

A  lessee's  bill  for  specific  performance  You.  295 ;  Tucker  v.  Woods,  12  Johns, 

•was  dismissed ;  his  interest,  described  as  190. 

fifty  years,  the  residue  of  a  term,  free  (a)  But  in  the  following  case  A.  was 
from  incumbrances,  being  a  few  years  beneficially  entitled,  under  his  marriage 
only  of  an  old  term,  and  a  reversionary  settlement,  to  an  estate  for  his  life,  and  to 
term  from  another  lessor ;  and  old  incum-  the  ultimate  reversion  in  foe  in  default  of 
brances  not  shown  to  be  discharged,  issue  male  ;  and  tlie  trustees  of  tlie  settle- 
White  V.  Foljambe,  11  Ves.  337.  ment  had  a  power  to  sell,  at  his  request 

A  contractor  for  the  purchase  of  an  es-  and  by  his  direction.  There  being  issue 
tate  in  fee-simple,  in  possession,  free  from  of  the  marriage,  A.,  acting  as  absolute 
incumbrances,  died  intestate,  before  com-  owner,  contracted  to  sell  the  estate  to  B., 
pletion  of  the  contract.  There  proved  to  but  the  trustees  afterwards  refused  to  con- 
be  an  oiitstanding  lease,  for  life,  at  a  low  cur  in  the  sale.  Held,  on  a  bill,  the  pur- 
rent.  A  bill  was  filed  by  the  heir-at-law  chaser  was  not  entitled  to  have  tlte  con- 
fer specific  performance,  with  an  abate-  tract  pertbrmed  to  the  extent  of  tiie 
ment  for  the  lease,  and  seeking  to  have  vendor's  interest,  by  a  conveyance  of 
the  purchase-money  paid  out  of  the  per-  his  life-estate  and  his  idtimate  reversion, 
sonal  assets  of  the  purchaser.  Held,  the  Thomas  v.  Deering,  1  Kee.  729. 
purchaser  could  not  have  been  compelled 


282  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XVI. 

the  property  conveyed  exceeds,  instead  of  falling  short  of,  that  con- 
tracted for.  Thus,  in  King  v.  Hamilton,^  the  Court,  in  giving 
their  opinion,  state  the  case  substantially  as  follows :  Bill  for 
specific  performance.  The  bill  states,  that  there  is  a  surplus  of 
several  hundred  acres,  and  by  actual  measurement  it  is  found  to 
be  eight  hundred  and  seventy-six  acres  (the  patent  having  been 
granted  for  one  thousand  five  hundred  and  thirty-three  and  one 
third  acres)  beyond  the  quantity  mentioned  in  the  contract.  It  is 
a  fact  of  general  notoriety,  tliat  the  surveys  and  patents  for  lands, 
within  the  Virginia  military  district,  contain  a  greater  quantity  of 
land  than  is  specified  in  the  grants.  Parties,  when  purchasing 
land  in  that  district,  and  referring  to  the  patent  for  a  description, 
of  course  expect  that  the  quantity  would  exceed  the  specified 
number  of  acres.  But  so  large  an  excess  can  hardly  be  presumed 
to  have  been  within  the  expectation  of  either  party.  And,  admit- 
ting that  a  strict  legal  interpretation  would  entitle  the  purchaser 
to  the  surplus,  whatever  it  might  be,  it  by  no  means  follows,  that 
a  Court  of  Chancery  will  in  all  cases  enforce  specific  performance 
of  such  a  contract.  The  powers  of  a  Court  of  Chancery  to  enforce 
specific  execution  are  very  valuable  and  important ;  for,  in  many 
cases,  where  the  remedy  at  law  for  damages  is  not  lost,  complete 
justice  cannot  be  done  without  a  specific  execution.  And  it  has 
been  almost  as  much  a  matter  of  course  for  a  Court  of  Equity  to 
decree  specific  execution  of  an  unobjectionable  contract  for  the 
purchase  of  lands,  as  it  is  to  give  damages  at  law  where  an  action 
lies.  But  this  power  is  to  be  exercised  under  the  sound  discretion 
of  the  Court,  with  an  eye  to  the  substantial  justice  of  the  case. 
If  this  large  surplus  should  be  taken  as  included  in  the  original 
purchase,  it  might  well  be  considered  a  case  of  gross  inadequacy 
of  price.  The  Court  decreed  a  conveyance  of  the  surplus,  the 
vendee  to  pay  for  the  same  at  the  average  rate  per  acre,  with 
interest,  which  the  consideration-money  mentioned  in  the  contract 
bore  to  the  quantity  of  land  named. ^ 

11.  But  where  the  plaintiif  brought  a  bill  in  equity,  supposing 
that  more  lands  passed  by  his  deed  than  was  intended ;  the  de- 
fendant being  a  purchaser  upon  valuable  consideration ;  held,  the 
Court  would  give  no  relief.^ 

1  4  Pet.  311. 

2  See  Catlicart  v.  Robinson,  5  Pet.  S.  C.  264. 

3  Clifford  V.  Laugliton,  Toth.  83. 


CHAP.    XVIT,]  REFERENCE    OF   TITLE.  283 


CHAPTER    XA^II. 


REFERENCE    OF   TITLE. 


1.     Questions  of  title,  when  and  how  referred.    Forms  of  proceeding. 

1.  In  suits  relating  to  the  sale  and  purcliase  of  lands,  more 
especially  where  a  bill  is  brought  for  specific  performance,  and  in 
case  of  any  doubt  or  difficulty,  Equity  adopts  the  practice  of  a 
reference  of  the  title,  for  the  purpose  of  determining  upon  its 
sufficiency,  and  making  a  return  or  report  to  the  Court.^  Thus 
after  an  answer,  submitting  to  perform  the  contract  if  a  good  title 
can  be  made,  a  reference  will  be  directed  by  decree,  or  by  order 
on  motion,  whether  a  good  title  can  be  made,  and  whether  it  ap- 
pears upon  the  abstract.^  So,  on  a  bill  filed  by  a  vendor  for  specific 
performance,  the  purchaser  insisted  that  the  contract  had  been 
abandoned ;  but,  failing  in  this  defence,  he  was  ordered  to  pay  the 
costs  up  to  the  hearing,  and  the  usual  reference  was  made  as 
to  title.^  But,  if  the  bill  and  answer  clearly  show  that  no  title 
can  be  made,  reference  will  not  be  ordered.*  So,  on  the  other 
hand,  specific  performance  was  decreed  against  a  purchaser,  with- 
out reference  as  to  the  title;  upon  possession,  and  no  objection 
made  to  the  abstract.^  So,  upon  possession;  a  correspondence; 
and  no  objection  to  the  title  till  two  years  after  the  abstract  was 
delivered.*' 

2.  When  an  inquiry  as  to  title  is  directed,  it  is  not  necessary  to 
carry  in  a  state  of  facts  ;  but  the  Master  proceeds  upon  the  abstract^ 
unless  the  purchaser  insists  upon  production  of  the  title-deeds.^ 

3.  As  has  been  suggested,  reference  of  title  may  be  made  on 
motion.  An  order  thus  made  ought  to  contain  directions  for  the 
production  of  deeds,  &c.,  and  for  the  examination  of  the  parties 

1  M'ComV)  V.  Wright,  4  Johns.  Ch.  659.  5  Fleetwood  v.  Green,  15  Ves.  594. 

2  Wright  V.  Bond,  11  Ves.  39;  2  Dan.  «  Margravine,  &c.  v.  Noel,  1  Madd. 
Ch.  Pr.  1462 ;  Winterbottom  v.  Ingham,     310. 

9  Sim.  654.  7  2  Dan.  Ch.  Pr.  1462. 

3  Taylor  v.  Brown,  2  Beav.  180.  8  2  Dan.  Ch.  Pr.  1463;  Poole  v.  Sher- 

4  Frost  V.  Brunson,  6  Yerg.  36.  gold,  1  Cox,  160. 


284  LAW    OP   VENDORS    AND    PURCHASERS.        [CHAP.    XVII. 

on  oath.i  And  the  Master  (under  Lord  Lyndhurst's  51st  order) 
has  the  same  power  to  examine  witnesses,  as  he  would  have  had  if 
the  reference  had  been  made  by  decree.^  When  reference  is  thus 
Taade,  further  directions  may  be  obtained  by  motion.^ 

4.  In  suits  for  specific  performance,  every  thing  connected  with 
the  title  may  be  the  subject  of  the  usual  reference,  upon  motion  as 
to  the  title,  and  may  be  added,  by  way  of  inquiry,  to  that  reference  ; 
but  the  Court  will  not  allow  inquiry  as  to  other  matters,  nor  decide 
upon  any  matter  of  relief  not  admitted  by  the  answer.^  The 
reference  may  inquire,  whether  it  appeared  by  the  abstract  in  the 
pleadings  mentioned,  that  a  good  title  could  be  made.^  Upon 
motion  for  a  reference  of  title,  where  performance  is  resisted  on 
other  grounds  than  the  title,  the  Court  will  determine  by  the 
answer  whether  those  grounds  are  substantial  or  frivolous.^  If 
substantial,  the  motion  will  be  denied. ''  If  not  substantial,  the 
Court  will  order  a  reference ;  as  where  the  ground  was,  that 
the  time  of  possession  had  been  made  of  the  essence  of  the 
contract,  which,  on  examination,  appeared  not  to  be  the  case.'^ 

5.  Upon  a  bill  filed  by  the  vendor  for  specific  performance,  it 
appeared  that  the  defendant,  in  the  course  of  correspondence 
between  the  solicitors,  and  upon  a  case  stated  on  his  part  for  the 
opinion  of  counsel,  expressed  himself  willing  to  accept  the  title,  if 
a  particular  objection  were  removed.  That  objection  not  being 
removed,  the  bill  was  filed.  Held,  the  reference  to  the  Master 
must  be  general,  and  not  confined  to  this  objection.^ 

6.  Somewhat  contrary  to  the  above  practice,  where  a  motion  was 
made,  after  bill  filed,  and  before  answer,  for  a  reference  as  to  title  ; 
the  counsel  for  the  defendant  saying,  there  were  other  matters  in 
question  besides  the  title ;  the  motion  was  refused. ^^  So  where 
there  was  a  further  subject  of  dispute,  beyond  the  title,  under 
a  claim  of  compensation,  reference  was  refused  with  costs. ^^  So 
there  will  be  no  reference  of  title,  upon  the  question  whether  the 
estate  was  tithe-free,  having  been  sold  as  such.^^     So  where  the 

1  Winterbottom  v.  Ingliam,  9  Sim.  654.     Morgan  v.  Shaw,  2  Mer.  138 ;  Gonpertz, 

2  WoodrofiFe  v.  Titterton,  8  Sim.  238.       12  Ves.  17  ;  Paton  v.  Rogers,  1  Ves.  &  B. 

3  Whitcomb  v.  Foley,  6  Madd.  3.  351. 

^  Bennett  v.  Rees,  1  Keen,  405;  Moss  §  Boehm  v.  Wood,  1  Jac.  &  W.  419. 

V.  Matthews,  3  Ves.  279.  9  Lesturgeom  v.  Martiif^  3  Myl.  &  Kee. 

5  Jennings  v.  Hopton,  1  Madd.  211.  255. 

*>  Withy  V.  Cottle,  Turn.  &  Rus.  78  ;  l"  Matthews  v.  Dana,  3  Madd.  470. 

1  Sim.  &  Stu.  174;  Boyes  v.  Liddell,  1         ^  v.  Skelton,  1  Ves.  &  Bea.  517. 

You.  &  Col.  133.  1^  WalHnger  v.  Hilbert,  1  Mer.  104. 

1  Blyth  V.  Elmherst,  1  Ves.  &  B.  1 ; 


CHAP.    XVII.]  REFERENCE    OF   TITLE.  285 

purchaser,  besides  objecting  to  the  title,  claimed  compensation  for 
defect  of  quantity ;  even  though  he  submitted  to  complete  his 
agreement.^ 

7.  If  exceptions  to  the  report  of  a  good  title  arc  overruled, 
other  objections  cannot  be  made ;  otherwise,  if  exceptions  are 
allowed,  and  a  new  abstract  delivered.^ 

8.  A  bill  prayed  specific  performance  "  if  a  good  title  could  be 
made."  At  the  hearing  it  was  declared,  that  the  agreement  ought 
to  be  specifically  performed,  and  referred  to  the  Master  to  inquire, 
whether  a  good  title  could  be  made.  The  Master  reported  in  the 
negative.  The  plaintiff,  on  further  directions,  waived  all  objec- 
tions to  the  title,  and  proposed  to  take  the  property  ;  but  the  ven- 
dor ol)jectcd.  Held,  the  plaintiff  was  entitled  to  a  decree ;  but 
being  aware,  at  the  first  hearing,  of  the  objections  to  the  title,  he 
ought  to  pay  the  costs  of  the  investigation  in  the  Master's  office.^ 

9.  Injunction  to  restrain  a  purchaser  from  proceeding  at  law,  to 
recover  part  of  the  purchase-money  paid  by  him  in  advance,  for 
want  of  title,  and  outstanding  incumbrances.  Held,  the  Court 
would  not  make  absolute  the  common  order  nisi  to  dissolve  the 
injunction,  without  the  Master's  report  upon  the  title,  although 
the  objections  were  fully  stated  in  the  defendant's  answer.* 

10.  The  Court  will  not,  on  motion,  after  an  order  for  a  reference, 
the  Master  having  found  that  a  good  title  can  be  made,  direct  him 
to  inquire  when  such  title  could  first  be  made.  Such  direction 
should  be  applied  for  at  the  hearing  on  the  merits.^  But,  in  case 
of  a  decree  for  reference  upon  the  title,  the  cause  coming  on 
for  further  directions,  after  a  report  approving  the  title,  the  de- 
fendant was  held  entitled  to  an  inquiry,  at  what  time  a  title  could 
have  been  made.^ 

,  10  a.  Bill  for  specific  performance,  filed  by  the  vendor.  On  a 
reference  of  title,  the  Master  having  reported  that  a  good  title 
could  be  made,  an  order  was  passed,  referring  it  back  to  him,  to 
see  whether  such  title  could  have  been  made  prior  to  the  filing 
of  the  bill."  But  the  inquiry,  at  what  time  a  title  could  be  made, 
is  a  proper  subject  of  further  directions  after  the  report  upon  the 
title ;  and  not  to  be  combined  with  the  reference  of  title.*^ 


1  Lowe  V.  Manners,  1  Mer.  19.  «  Daly  v.  Osborne,  1  Mer.  382. 

2  Brooke  v. ,  4  Madd.  212.  T  Birch   v.    lluynes,   2    I\Ier.    444 ;    3 

3  Bennett  v.  Fowler,  2  Beav.  302.  Madd.  4'J5. 

4  Cliurdi  V.  Legeyt,  1  Sugd.  491.  »  Gibson  v.  Clarke,  2  Ves.  &  Bea.  103. 

5  Lubin  V.  Lightbody,  8  Price,  600. 


286  LAW    OF   VENDORS   AND    PURCHASERS.         [CHAP.    XVII. 

11.  A  reference  having  been  made  as  to  title,  on  one  motion,  the 
party  cannot  afterwards,  by  another  motion,  have  a  reference  as  to 
the  deUvery  of  the  abstract.^ 

12.  Bill  for  specific  performance  against  a  purchaser.  The 
defendant,  admitting  that  he  had  been  for  several  months  in 
possession,  and  had  exercised  acts  of  ownership,  on  the  faith  that 
a  good  title  to  three  hundred  and  forty-nine  acres  would  be  shown, 
insisted  that  in  the  contract  acres  meant  statute  acres,  and  that 
he  was  not  bound  unless  three  hundred  and  forty-nine  statute 
acres  were  conveyed  to  him.  Held,  a  reference  of  title  would  not 
be  directed  on  motion.  It  seems,  the  clause,  "  be  the  same  more 
or  less,"  would  not  cover  so  large  a  deficiency.^ 

13.  Reference  of  title  before  answer  ;  the  plaintiff,  the  vendor, 
undertaking  to  do  all  such  acts,  for  the  purpose  of  executing  what 
the  Court  thinks  right,  as  if  the  answer  were  in,  and  the  cause 
brought  to  hearing.  Direction,  if  the  report  shall  be  against  the 
title,  for  compensation ;  but  refused  as  to  indemnity .^ 

14.  On  a  report  against  the  vendor's  title,  his  bill  for  specific 
performance  was  dismissed,  with  costs,  on  motion.'*  But  an  order 
to  dismiss  a  bill  for  want  of  prosecution  is  not  of  course,  pending 
a  reference  on  motion;  the  title  alone  being  in  question.^  But 
where,  in  a  suit  by  a  vendor  for  specific  performance,  the  Master 
reported  in  favor  of  the  title,  but  the  Court,  on  exception,  deemed 
it  doubtful ;  an  order  was  made,  dismissing  the  bill,  without  costs, 
but  neither  allowing  nor  disallowing  the  exception.^ 

15.  Where  the  report  is  in  favor  of  the  title,  the  Court,  on 
allowing  exceptions  to  it,  will  give  the  vendor  a  reasonable  time  to 
remove  the  objection,  although  the  exceptions  and  further  direc- 
tions were  set  down  to  come  on  together.'' 

16.  On  a  motion  by  a  vendor  against  a  vendee  in  possession,  for 
a  reference  to  set  an  occupation  rent,  the  title  not  being  completed, 
an  order  was  accordingly  made,  and  that  interest  at  X5  per  cent 
upon  the  deposit  should,  under  the  circumstances,  be  deducted 
out  of  such  rent.^ 

17.  Upon  a  question  of  title,  as  to  specific  performance,  further 
evidence  may  be  produced  on  both  sides  before  the  Master.^ 

1  Hyde  v.  "Wroughton,  3  Madd.  279.  &  Biscoe  v.  Brett,  2  Ves.  &  Bea.  377. 

2  Portman  v.  Mill,  2  Buss.  570.  6  Wilcox  v.  Bellares,  Turn.   &  Kuss. 

3  Balmanno  v.  Luniley,  1  Ves.  &  Bea.    491. 

224.  7  Portman  v.  Mill,  1  Enss.  &  Myl.  696. 

4  Walters  v.  Pyman,  19  Ves.  351;  Ben-         «  Smith  v.  Jackson,  1  Mad.  618. 
nett  V.  Carey,  3  Bro.  390.  9  Vancouver  v.  BUss,  11  Ves.  458. 


CHAP.    XVII.]  EEFERENCE   OF   TITLE.  287 

18.  One  general  exception  was  taken  to  the  Master's  report  of  a 
good  title,  which  did  not  point  out  the  ohjections  to  the  title.  The 
Court  disapproved  of  this  inconvenient  mode  of  proceeding.^ 

19.  Where,  on  reference  as  to  title,  in  a  suit  against  a  purchaser 
for  specific  performance,  the  Master  reports  in  favor  of  the  title, 
but  the  Court  holds  it  to  be  so  doubtful,  that  the  inirchaser  should 
not  be  compelled  to  take  it ;  the  bill  may  be  dismissed,  without 
allowing  the  exceptions  taken  by  the  defendant  to  tlic  report.^ 

20.  Leave  was  given,  under  the  circumstances,  to  except  to  a 
report,  although  the  party  had  not  carried  in  objections  to  it.^ 

21.  A  purchase  before  the  Master  is  not  complete,  before  con- 
firmation of  the  report.  Therefore  a  loss  by  fire,  after  the  report, 
but  before  confirmation,  falls  upon  the  vendor ;  although  the  sale 
was  delayed  by  the  purchaser's  having  opened  the  biddings.'* 

22.  After  a  report,  which  was  confirmed,  in  favor  of  a  title,  by  one 
Master,  another  Master,  in  another  proceeding,  made  a  report,  by 
which  the  title  was  affected.  On  motion,  the  title  was  referred 
back  to  the  former  Master.^ 

23.  If,  upon  a  question  of  title,  the  Master  is  satisfied  with  the 
evidence,  but,  upon  the  hearing  of  an  exception  to  the  report,  the 
Court  thinks  the  evidence  not  sufficient ;  the  Court,  upon  the  appli- 
cation of  the  vendor,  even  though  for  some  time  delayed,  will  refer 
it  back- to  the  Master  to  review  his  report,  in. order  to  give  the  ven- 
dor an  opportunity  of  producing  further  evidence.^ 

24.  The  plaintitf,  holding  a  contract  for  the  purchase  of  land, 
sold  the  land  to  tlie  defendant ;  and,  upon  the  defendant's  failure 
to  fulfil  his  contract,  files  a  bill  for  specific  performance.  The  case 
was  referred  to  a  Master,  to  report  whether  the  plaintiff'  could  make 
a  good  title.  The  report  was  favorable,  and  the  defendant  ex- 
cepted. Held,  the  report  followed  the  reference,  though  it  should 
properly  show  how  title  could  be  made ;  and  specific  performance 
was  decreed.'^ 

1  Flomer  v.  Hartopp,  6  Beav.  476.  5  Jeudwine  v.  Alcoek,  1  Madd.  597. 

2  Robinson  v.  Miliier,  1  Hare,  578,  n.  6  Andrew    v.    Andrew,    3    Sim.   390  ; 

3  Wood  V.  Lambirtii,  9  Sim.  195.  Egerton  v.  Jones,  3  Sim.  392. 

*  Ex  parte  Minor,  11  Ves.  559.  ^  Scott  v.  Thorp,  4  Edw.  Cli.  1. 


288  LAW    OF   VENDORS   AND   PURCHASERS.       [CHAP.    XVIII. 


CHAPTER    XVIII. 


TITLE-DEEDS. 

1.  In  the  English  law  the  deeds,  under  which  a  title  to  real 
property  is  derived  or  claimed,  constitute  an  important  subject  of 
inquiry,  and  give  rise  to  numerous  and  nice  questions.  And 
although  in  the  United  States,  whej'C  the  system  of  registration 
universally  prevails,  the  rules  upon  this  subject  cannot  be  con- 
sidered as  generally  in  force  ;  still  a  comprehensive  view  of  the 
law  of  vendors  and  purchasers  requires  that  they  should  be  sum- 
ma,rily  noticed. 

2.  In  England,  it  is  the  settled  rule  of  law,  that  a  purchaser  of 
real  property  is  not  bound  to  complete  his  purchase  without  the 
title-deeds,  unless  he  has  a  legal  covenant  to  produce  them.^  And 
the  production  of  title-deeds  and  other  papers  is  sometimes  re- 
quired by  the  Court,  as  a  condition  of  enforcing  specific  perform- 
ance, (a)  Thus  a  reversion  having  been  put  up  to  sale  by  auction, 
describing  the  estate  as  leased,  with  a  covenant  on  the  part  of  the 
tenant  to  repair  ;  and  the  purchaser  objecting  to  the  title,  because 
no  counterpart  of  the  lease  was  in  possession  of  the  vendors,  it 
being  stated  to  be  in  the  hands  of  a  party  under  a  partition  made 
some  time  before :  the  Court  thought  that  such  counterpart  ought 
to  be  deposited  for  the  benefit  of  all  parties,  before  it  could  com- 
pel the  purcliaser  to  take.^  So  specific  marriage  articles  limited 
a  joint  estate  to  the  intended  husband  and  wife,  and  after  the 

1  Barclay  v.  Raine,  1  Sim.  &  Stu.  449.         2  Shore  v.  Collett,  Coop.  234. 

(a)  Equity  will  not  order,  that  a  volun-  of  Eliz.,  give  the  purchaser  an  advan- 
tary  deed  or  agreement  affecting  land  be  tage  at  law  which  the  donor  could  not 
delivered  up  to  a  purchaser  of  the  land,  have  obtained  in  equity,  it  does  not  ...  in 
to  be  cancelled.  "  The  Court  will  not,  at  equity  have  any  such  effect,  but  the  pur- 
the  instance  of  a  donor  who  repents  of  his  chaser  can  only  do  what  the  vendor  him- 
gift,  cause  the  deed  of  gift  to  be  given  up,  self  could  have  done."  De  Hoghton  v. 
nor  will  it,  at  the  instance  of  the  donee,  Money,  Law  Rep.  (Eng.)  Eq.,  Feb. 
interfere  to  complete  an  imperfect  deed  of  1806,  pp.  152,  157,  158,  per  Sir  J.  Rom- 
gift."  And,  "  although  the  sale  for  value  illy,  M.R. 
may  in  some  cases,  by  virtue  of  the  27th 


CHAP.    XVril.]  TITLE-DEEDS.  289 

death  of  the  survivor  to  the  use  of  the  heirs  of  the  body  of  the 
husband  begotten  on  the  wife ;  and  the  settlement  after  marriage 
pursued  the  words  of  the  articles.  The  husband  and  wife  levy  a 
fine  and  first  mortgage,  and  then  agree  to  sell.  The  articles  not 
being  produced,  the  Court  would  not  decree  them  to  be  carried 
into  execution  by  a  strict  settlement,  against  the  purchaser,  who 
had  no  notice  of  tliem.^ 

3.  By  analogy  to  this  rule,  it  is  held  tliat  a  vendee  is  not  bound 
to  accept  the  title,  unless  the  deeds  under  which  it  is  deduced  are 
regularly  recorded  ;  there  being  no  otber  proof  of  their  execution.^ 
But  where  a  party  binds  himself  to  execute  a  deed  to  anotlier,  he 
is  bound  to  deliver  or  tender  it  to  him ;  the  acknowledgment  of  it 
before  the  clerk  of  the  county  court,  and  deposit  of  it  with  liim  for 
the  benefit  of  the  grantee,  are  no  performance  of  his  obligation.^ 

4.  While  the  title-deeds  must  themselves  be  produced,  a  good 
title  also  requires  the  production  of  extraneous  evidence  of  the 
facts  stated  in  the  deeds ;  even  though  the  purchaser  makes  no 
requisition  therefor.'^  A  vendor  must  produce  all  evidence  neces- 
sary to  verify  the  title,  beyond  the  title-deeds  in  his  own  custody, 
unless  his  intention  to  the  contrary  be  previously  made  known  to 
the  purchaser  in  clear  and  explicit  terms.^  If  a  vendor  retains 
the  title-deeds,  and  covenants  for  further  assurance  only,  the  pur- 
chaser may  compel  him  to  covenant  for  production  of  the  deeds.*^ 
But  a  purchaser  is  not  entitled,  as  a  matter  of  course,  to  a  cove- 
nant for  tlie  production  of  all  documents  contained  in  the  abstract 
of  title,  which  are  not  delivered  to  him  ;  but  only  of  those  which 
are  necessary  to  make  out  a  good  sixty  years'  title." 

5.  Although  conditions  of  sale  provide,  that  no  earlier  or  other 
title  should  be  deduced,  or  any  deed  or  document  produced,  ante- 
rior to  a  specified  document ;  the  vendee  is  not  precluded  from 
making  an  objection  to  the  title,  which  appears  on  the  face  of  the 
abstract  delivered.^ 

6.  A  purchaser,  who  cannot  have  the  original  title-deeds,  the 
estate  being  sold  in  a  great  nvimber  of  lots,  is  entitled  to  attested 
copies  at  the  expense  of  the  vendor,  notwithstanding  the  incon- 

1  Cordwell  v.  Mackrill,  Ambl.  515.  5  Southby    v.    Hutt,    2   Myl.   &   Cra. 

-  Bartlett  v.  Blanton,  4  J.  J.  Marsh.  207. 

428.  6  Fain  v.  Ayers,  2  Sim.  &  Stu.  533. 

3  McFadgen  v.  Eisensmidt,  10  Humph.  7  Cooper  v.  Emery,  1  Piiil.  388. 

567.  .    8  Sellick  v.  Trevor,  11  Mees.  &  "Wels. 

*  Sherwin  v.  Shakspeare,  23  Eng.  Law  722. 
&  Eq.  199. 

19 


290  LAW    OF   VENDORS    AND    PURCHASERS.       [CHAP.    XVIII. 

venience  and  expense. ^(a)  So,  where  title-deeds  cannot  be  deliv- 
ered, assignees  must,  like  any  other  vendor,  give  attested  copies  of 
them  at  the  expense  of  the  estate  ;  but  their  covenant  for  the  pro- 
duction of  the  deeds  should  be  confined  to  the  time  of  their  con- 
tinuance as  assignees.^ 

7.  In  case  of  objection  to  a  title  for  want  of  a  deed,  which 
had  been  enrolled  at  a  public  office,  but  could  not  be  found,  a 
copy  of  it,  taken  in  1632,  attested  to  be  a  true  one  by  five  witnesses, 
was  produced  in  court.  Lord  Hardwicke  was  of  opinion,  that  this 
would  have  been  sufficient,  even  without  an  attestation.^ 

8.  If  after  a  sale,  but  before  the  title  is  accepted,  the  title-deeds 
be  destroyed  by  fire,  the  Court  will  not  compel  specific  perform- 
ance, unless  the  vendor  can  furnish  the  means  of  showing  their 
contents,  and  that  they  were  duly  executed  and  delivered.^ 

9.  While  a  title  depending  on  deeds  must  generally  be  verified 
by  production  of  them;  still,  as  we  have  already  seen  (ch.  13),  a 
good  title  may  be  made,  although  the  origin  cannot  be  shown  by 
any  deed  or  will ;  if  there  has  been  such  a  long,  uninterrupted  pos- 
session and  enjoyment  of,  and  dealing  with,  the  property,  as  afford 
a  reasonable  presumption  tliat  there  is  an  absolute  title  in  fee- 
simple.^  Thus  where  the  plaintiff  produces  an  original  lease  of  a 
long  term,  and  proves  possession  for  seventy  years,  the  mesne 
assignments  shall  be  presumed.^  So  the  existence  and  execution 
of  a  settlement  by  indentures  of  lease  and  release  were  presumed 
from  circumstances  ;  —  principally  the  existence  of  the  drafts ; 
the  statement  in  an  abstract  of  title  ;  and  the  existence  of  the  lease 
for  a  year  of  other  estates,  appearing  to  have  been  included  in  the 
same  plan  of  settlement."     But  it  has  been  held,  that  a  vendor's 

'  Dare  v.  Tucker,  6  Ves.  459 ;   Ward  ■*  Bryant  v.  Busk,  4  Russ.  1. 

V.   Garmons,   17   Ves.   134;  Boughton  v.  ^  Cottrell  y.  Watkins,  1  Beav.  361. 

Jewell,  15  Ves.  176.  «  Earl  v.  Baxter,  2  Blackst.  1228. 

2  Ex  parte  Stuart,  2*ose,  215.  7  Ward  v.  Garraous,  17  Ves.  134. 

3  Harvey  v.  Phillips,  2  Atk.  541. 

(a)  But,   on   the    other  hand,   a    pur-  copies  of  them,  as  well  as  of  the  surren- 

chaser  is  not  bound  to  put  up  with  copies,  ders   and   admittances,   which    would   be 

where  the  originals  can  be  had.      Thus  good  evidence,  might  be  procured  by  the 

the  vendor  of  copyhold,  enfranchised  in  purchaser  at  any  time.     The  vendor  was 

1799,  delivered  to  the  purchaser  two  ab-  unable  to  deliver  to   the   purchaser  the 

stracts  commencing  in  1736,  one  of  title  deed  of  1799,  or  any  of  the  prior  instru- 

to  the  land  and  the  other  of  the  title  to  ments,   but  was   willing   to   covenant   to 

the  manor.     The  deed  of  1799,  which  was  produce  that  deed.      Held,  that  he  was 

forty   years   old,   recited,    that   the   then  bound  to  give  the   purchaser   covenants 

lord  and  the  then  owner  of  the  land  wore  for  the  production,  not  only  of  that  deed, 

respectively  seised  in  fee  ;  and  several  of  but  of  all  the  prior  instruments  mentioned 

the  deeds  relating  to  the  lord's  title  were  in  the  abstracts.     Cooper   v.  Emery,  10 

bargains  and  sales  enrolled,  and  tlierefore,  Sim.  609. 


CHAP.    XVIII.]  TITLE-DEEDS.  291 

showing  an  uninterrupted  possession  of  twenty  years  in  himself, 
and  those  under  whom  he  claims,  is  not  sufficient.^ 

10.  Where  a  title  was  derived  from  one  who  entered  as  heir, 
under  the  impression  that  his  ancestor's  will  was  void,  a  purchaser 
was  not  compelled  to  complete  his  contract,  without  production  of 
the  will,  or  evidence  of  its  contents.^  But  where  one  articles  to 
buy  land,  and  the  title  is  under  a  will,  not  proved  in  equity  against 
the  heir ;  yet,  in  some  cases,  equity  will  compel  the  purchaser  to 
accept  the  title.^ 

11.  The  abstract  of  title  is  one  of  the  documents  upon  which 
questions  have  often  arisen  between  vendor  and  purchaser.  Where 
the  title  and  abstract  are  to  be  made  at  the  vendor's  expense,  the 
purchaser  is  entitled  to  the  custody  of  the  abstract,  until  either 
the  purchase  is  finally  rescinded  by  consent,  or  declared  imprac- 
ticable by  a  Court  of  Equity.  When  the  contract  is  determined, 
the  abstract  becomes  the  property  of  the  vendor.  If  the  sale 
proceeds,  it  is  the  property  of  the  vendee.  An  opinion  written 
thereon,  as  it  was  necessarily  written  on  the  seller's  paper  by  his 
consent,  continues  the  property  of  the  purchaser.* 

12.  On  reference  of  title  to  a  Master,  he  proceeds  on  the  abstract 
only,  unless  the  purchaser  requires  the  deeds ;  and  the  latter 
cannot  except  to  the  report  on  this  ground.^ 

13.  Specific  performance  decreed ;  the  abstract,  though  deliv- 
ered very  late,  and  under  a  notice  that  the  vendee  would  insist  on 
his  deposit,  with  interest,  if  the  title  should  not  be  made  out,  and 
possession  delivered,  by  the  time  of  payment,  having  been  received 
and  kept  without  objection  ;  and  the  vendee,  upon  the  construction 
and  the  circumstances,  not  being  entitled  to  insist  on  the  time,  as 
of  the  essence  of  the  contract.^(a) 

A  Lewis  V.  Herndon,  3  Litt.  358.  *  Roberts  v.  Wyatt,  2  Taunt.  268. 

2  Stevens  v.  Guppy,  2  Sim.  &  Stu.  439.         ^  Poole  v.  Shergold,  1  Cox,  160. 

3  Colton  V.  Wilson,  8  P.  Wms.  lyO.  ^  Sei,„  j,..  glade,  7  Ves.  265. 

(a)  Conditions  of  sale  of  an  estate  sold  session   and    set   fortli    in    tlie    abstract. 

in  lots,  that  the  vendor  should  deliver  an  Held,  these  conditions  did  not  relieve  tlie 

abstract  of  the  title  to  the  purchasers,  and  vendor   from    verifying   the    title   shown 

deduce  a  good  title ;  but,  as  to  a  part  of  upon  the  abstract,  by  producing  the  title- 

the  estate,  acquired  under  an  inclosure,  deeds  themselves,  or,  if  any  of  them  were 

he  should  not  be  bound  to  show  any  title  not  in  his  possession,  by  otlier  satisfactory 

thereto,   prior   to   the    award;    that   the  evidence.    Southby  v.  Hutt,  2  Myl.  &  Cra. 

vendor  should  deliver  up,  to  the  largest  207. 

purchaser  in  value,  all  the  title-deeds  and  In  1745,  J.  executed  a  settlement  of 
other  documents  in  his  custody,  but  not  lands,  reserving  a  power,  with  the  con- 
be  required  to  produce  any  original  deed  sent  of  A.,  to  revoke  the  uses.  The 
or  other  documents  than  those  in  his  pos-  abstract  of  title  set  forth  a  will  of  J.,  dated 


292 


LAW    OF   VENDORS    AND    PURCHASERS.        [CHAP.    XVIII. 


in  1761,  whereby  he,  with  the  consent  of 
A.,  revoked  the  uses ;  and  it  referred  to 
a  copy  of  the  will.  P.,  tlie  son  and  heir 
of  J.,  by  indenture  of  1763,  reciting  tlie 
will,  resettled  the  estates  ;  and  possession 
had  since  gone  accordingly.  Held,  the 
non-production  of  the  will  was  not  an 
objection  to  the  title.  In  the  same  case, 
the  abstract  stated  a  deed  of  March,  1814, 
making  a  tenant  to  the  jmrcipe,  which 
recited  articles  of  February,  1814,  be- 
tween the  father,  tenant  for  life,  and  his 
son,  tenant  in  tail,  empowering  them  to 
revoke  the  uses  thereby  declared ;  and 
the  recovery  was  declared  to  enure  to  the 
uses  in  the  articles.  In  1815,  the  fiither 
and  son  revoked  the  uses,  and  resettled 
the  estates  ;  and  possession  had  gone 
accordingly.  The  abstract  stated,  that 
the  articles  had  been  lost ;  and  it  appeared 
that  search  had  been  made  for  them. 
Held,  that  their  non-production  was  not 
an  objection  to  the  title.  Held,  in  the 
same  case,  if  counsel  for  the  purchaser 
M'aive  the  production  of  a  particular  docu- 
ment, stated  in  the  abstract  to  be  lost,  and 
the  purchaser  adopt  that  opinion,  and 
deal  with  the  seller  upon  that  view,  he 
will  not  be  permitted  to  repudiate  the 
opinion  of  his  counsel.  Alexander  v. 
Crosby,  1  Jones  &  Latouche,  666. 

Upon  the  death  of  one  of  two  partners, 
intestate,  his  personal  representatives 
agreed  to  sell  his  moiety  of  the  real  prop- 
erty to  the  other,  and  furnish  him  at  their 
own  expense  with  an  abstract  of  their 
title.  Held,  they  were  bound  to  furnish 
the  usual  abstract  of  title,  and  not  merely 


the  letters  of  administration.  Morris  v. 
Kearsley,  2  You.  &  Coll.  139. 

Purchase  of  a  mansion-house  and  park 
under  conditions  of  sale,  which  stated  that 
the  whole  property  was  freehold,  except 
eight  acres  which  were  copyhold,  but  un- 
distinguished, except  as  not  including  any 
of  the  buildings.  The  abstract  of  title 
having  been  delivered,  and  discussions 
arisen  thereon,  which  raised  difficidties  in 
the  way  of  completing  the  purchase  ;  a 
supplemental  agreement  was  entered  into, 
detailing,  among  the  requisitions  ,  "  dec- 
laration of  identity  of  lands  mentioned  in 
deeds  to  those  now  sold."  Held,  on  a 
bill  tiled  by  the  vendor  for  specific  per- 
form.ance,  that  the  supplemental  agree- 
ment was  a  substitution  for  the  original 
contract,  and  that  the  vendee  was  not 
entitled  to  demand,  that  the  vendor  should 
distinguish  the  freehold  from  the  copy- 
hold, so  as  to  show  that  the  latter  did  not 
include  any  of  the  buildings.  Dawson  v. 
Brinckman,  3  Eng.  Law  &  Eq.  239. 

A  condition  of  sale  of  copyhold  estates 
stipulated,  that  the  vendors  should  not  be 
required  to  produce  any  deeds,  instru- 
ments, or  documents  of  title,  not  in  their 
possession.  Held,  in  an  action  to  recover 
back  the  deposit,  that  the  vendors  were 
not  bound  to  procure  a  covenant,  for  the 
production  of  two  deeds  not  in  possession 
of  the  vcTidor,  but  which  were  set  out  in 
the  abstract  of  title  delivered  to  the  pur- 
chaser, and  to  which  the  vendors  had 
procured  access,  for  the  purpose  of  veri- 
fying the  abstract.  Gabriel  v.  Smith,  6 
Eng,  Law  &  Eq.  172. 


CHAP.    XIX.]  TITLE   TO    LEASEHOLDS.  293 


CHAPTER  XIX. 


TITLE   TO   LEASEHOLDS. 

1.    Agp-eement  for  a  lease.  12.  Compensation. 

5.     Whether  an  agreement  for  a  lease  or  14.  Effect  of  notice. 

purchase    in   fee;    agreement  not  containing  16.  Parol  evidence, 

words  of  inheritance,  iS:c.  17.  Waiver. 

9rt.     Obligation  as  to  title;  performance  18.  Statute  of  Frauds. 

inpart.  21.  Part-performance. 

1.  The  principles  stated  in  the  foregoing  chapters,  as  to  the  title 
of  a  vendor,  apply  more  particularly  to  sales  in  fee-simple  or  of  the 
entire  estate.  There  is  anotlier  interest  in  real  property,  which 
often  becomes  the  subject  of  sale  and  purchase,  and  which  may 
most  properly  be  considered  in  this  connection,  to  wit,  leasehold 
estates  or  te7'ms  for  years.  A  lease,  being  an  executed  conveyance., 
and  not  a  mere  executory  co7itract,  does  not  fall  within  the  plan  of 
the  present  work,  except  so  far  as  connected  with  the  subsequent 
sale  and  purchase  of  the  lessee's  interest.  But  an  agreement 
to  lease.,  being  in  its  nature  executory,  requires  to  be  briefly 
noticed. 

2.  Whether  an  instrument  is  a  lease,  or  only  an  agreement  for 
one,  depends  upon  the  paramount  intent  of  the  parties,  as  collected 
from  the  whole  tenor  and  effect  of  the  instrument. ^(a)  Words  of 
present  demise,  as  doth  let,  agrees  to  let,  agrees  to  pay  for,  <fec.,  gener- 
ally make  an  actual  lease  ;  unless  a  contrary  intent  is  to  be  gath- 
ered from  the  whole  instrument.  As  where,  notwithstanding  such 
words,  a  future  lease  is  provided  for,  upon  the  making  of  certain 
improvements  ;  or  additional  land  is  to  be  purchased,  and  included 

1  Goodtitle  v.  Way,  1  T.  R.  735  ;  Hal-  v.  Brooke,  1  M.  &  R.  10  ;  John  v.  Jenkins, 
lett  V.  Wylie,  3  Johns.  44,  383  ;  Perring     1  €r.  &  M.  233. 

(a)  See  Tillman  v.   Fuller,   13   Mich.  Where,  in  an  agreement  for  ji  lease, 

113.     By  St.  7  &  8  Vict.  c.  70,  §  4,  any  there  is  no  price  fixed  by  the  parties,  or  it 

written   agreement   to   let   land  shall  be  is  left  to  the  award  of  a  third  i)erson,  not 

valid,  and  any   one  in  possession  under  designated,  there  is  wanting  an  essential 

sucli  agreement  may,  from  payment   of  ingredient  to  constitute  a  contract  of  lease, 

rent  or  other  circumstances,  be  construed  Haughery  v.  Lee,  17  La.  An.  22. 
as  a  tenant  from  year  to  year. 


294 


LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XIX. 


in  the  lease.-^     But  an  agreement  to  give  a  more  formal  lease  may 
amount  only  to  a  covenant  ^oy  further  assurance.^  (a) 

3.  Uncertainty  in  the  terms  of  holding  generally  constitutes  the 
instrument  a  mere  agreement  to  lease.^  So  the  fact  that  a  forfeit- 
ure will  be  incurred,  if  otherwise  construed.* 

4.  An  agreement  to  give  a  lease  may  be  enforced,  either  by  an 
action  for  damages,  or  a  bill  in  equity  for  specific  performance.^ 

5.  The  question  sometimes  arises,  upon  the  peculiar  terms  of  a 
contract,  whether  it  provides  for  a  lease  or  a  2^'urcliase  of  the  fee. Q)) 
Thus  A.  agreed  with  B.  by  deed,  that  he,  A.,  would,  on  payment 
of  <£900,  as  thereinafter  mentioned,  grant,  sell,  and  convey  to  B. 
certain  messuages,  lands,  &c. ;  and  B.  covenanted  to  pay  said  sum 
on  or  before  the  1st  of  January  then  next,  or  whenever  a  good 
title  should  be  tendered  to  him ;  but,  if  B.  should  on  or  before  the 


1  Baxter  v.  Brown,  2  W.  Bl.  973; 
Jackson  v.  Moncrief,  5  Wend.  26 ;  Jack- 
son V.  Delacroix,  2,  433  ;  Diuik  v.  Hunter, 
5B.  &  A.  322;  Doe  v.  Ashburner,  5  T. 
E.  163. 


436. 


2  Jackson  v.  Keisselbrach,   10  Johns. 


3  Alderman  v.  Neate,  4  M.  &  W.  704. 

4  Tenny  v.  Childs,  2  M.  &  S.  225. 

5  Price  V.  Williams,  1  Mees.  &  W.  6. 


(a)  The  defendant  A.  employed  B.  to 
agree  with  the  plaintiff  C.  for  the  purchase 
of  C.'s  leasehold  interest  in  a  house.  C.  also 
held  stables  under  a  distinct  demise,  and 
for  a  longer  term.  A.  did  not  authorize 
B.  to  purchase  the  lease  of  the  stables ; 
and  B.  had  represented  to  A.  that  he  had 
taken  the  lease  of  the  house  only  ;  but  in 
fact  B.  had  taken  from  C.  an  agreement 
in  writing  for  the  purchase  of  the  lease  of 
the  house,  in  which  was  also  the  following 
clause:  "I  further  agree  to  let  to"  A.  the 
stable  "  for  the  same  rent  and  subject  to 
the  same  conditions  that  I  hold  them  my- 
self" Afterwards  C.  wrote  to  A.,  stating 
that  such  was  the  bargain,  adding  that 
the  stables  were  to  be  sublet  for  five  j'ears 
only.  This  was  in  fact  the  same  period 
as  the  residue  of  the  lease  of  the  house  ; 
but  it  was  not  so  stated  in  the  letter. 
There  was  nothing  else  to  indicate  for 
what  term  the  lease  of  the  stables  was  to 
be.  A.  wrote  and  signed  an  answer, 
which  the  Court  of  Queen's  Bench  con- 
strued to  be  a  ratification  of  B.'s  bargain 
for  him,  and,  in  connection  with  the  let- 
ters, to  bind  A.  for  a  sublease  of  the  sta- 
bles. Held,  by  the  Exchequer  Chamber, 
tliat  it  (lid  not  appear  on  the  face  of  the 
writing,  that  the  parties  were  agreed  as 
to  the  term  for  which  the  sublease  was  to 
be,  and  that  there  was  therefore  either  no 
complete  agreement,  or,  if  there  was  a 
complete  agreement,  no  sufficient  memo- 


randum of  it.  Bailey  v.  Fitzmaurice,  8 
Ell.  &  B.  664. 

A  purchaser  of  leaseholds  was  to  have 
possession  on  a  certain  day,  "  all  out- 
goings up  to  that  day  being  cleared  by 
the  vendors."  Held,  on  a  bill  for  specific 
performance  by  the  vendors,  that  an  ap- 
portioned part  of  the  current  rent  from 
the  last  quarter  day  to  the  day  mentioned 
must  be  allowed  to  the  purchaser.  Lawes 
V.  Gibson,  Law  Rep.  (Eng.)  Eq.  Febru- 
ary, 1866,  p.  135. 

[h]  An  agreement  for  a  lease  was  held 
to  fall  within  the  terms  of  a  statute,  which 
authorized  bills  in  a  particular  court,  for 
specific  performance,  primarily,  in  case  of 
sale  and  jmrchase.  Wilcox  v.  Marshall, 
Law  Rep.  (Eng.)  Eq.  March,  1867,  p. 
269. 

Agreement  for  the  sale  of  a  public 
house,  "  and,  inasmuch  as  it  is  intended 
that  [the  purchaser]  shall  l)e  let  into  im- 
mediate possession  of  the  hereditaments, 
&c.,  and  for  tiie  purpose  of  securing  the 
due  performance  of  the  several  agree- 
ments, &c.,  he  the  said,  &c.,  hereby  ad- 
mits himself  to  be  a  tenant  from  week  to 
week  to  [the  vendor]  of,  &c.,  at  the  weekly 
rent  of,  &c.,  payable  in  advance."  Held, 
this  clause  created  the  relation  of  landlord 
and  tenant,  and  gave  the  former  the  right 
to  distrain.  Yeoman  v.  Ellison,  Law 
Rep.  (Eng.)  December,  1867,  p.  680. 


CHAP.    XIX.]  TITLE    TO    LEASEHOLDS.  295 

1st  of  January  so  desire,  that  sum  miglit  remain  a  charge  on  the 
premises,  provided,  upon  completion  by  A.  of  the  conveyances, 
B.  should  execute  proper  conveyances  for  securing  .£900  on  the 
premises  with  interest.  Covenant  by  B.,  to  pay  the  interest,  so 
long  as  the  principal  should  remain  unpaid.  Proviso,  tliat,  if  the 
interest  should  be  in  arrear  thirty  days,  B.  should  be  considered 
as  a  tenant  to  A.  from  the  date  thereof,  at  a  certain  yearly  rent, 
payable  semi-annually  ;  and  it  should  be  lawful  for  A.,  his  heirs  and 
assigns,  to  enter  and  distrain,  and  to  sell  and  dispose  of  the  dis- 
tress, or  otherwise  to  deal  with  the  same,  as  in  distresses  for  rent 
reserved  by  lease,  to  the  end  that  A.  might  be  fully  paid  and  satis- 
fied the  interest  and  costs.  B.  gave  due  notice,  that  he  would 
require  the  purchase-money  to  remain  a  charge  for  live  years  ;  was 
let  into  possession  and  received  the  rents,  and  in  July,  1828,  be- 
came bankrupt ;  and,  half  a  year's  interest  being  in  arrear  for  more 
than  thirty  days,  A.  distrained  on  the  tenants  then  in  possession. 
The  assignees  paid  the  amount  of  the  distress.  On  the  16th  of 
October,  1828,  after  B.  had  obtained  his  certificate,  another  half- 
year's  interest  became  due,  and  this  action  of  covenant  was  brought 
against  him  to  recover  it.  He  pleaded  the  bankruptcy,  generally. 
Held,  the  agreement  was  substantially  an  agreement  for  a  purchase, 
and  did  not  become  a  lease,  or  agreement  for  a  lease,  by  non-pay- 
ment of  the  interest,  and  the  above  proviso  ;  that  the  plaintiff  was 
entitled  to  have  the  estate  resold,  and  the"  produce  and  interest 
applied  in  payment  of  the  purchase-money,  and  to  prove  against  the 
estate  for  the  residue ;  and,  consequently,  that  the  claim  for  inter- 
est was  a  debt  provable  under  the  commission,  and  therefore 
barred  by  the  certificate.^  So  the  declaration  alleged,  that  tiie 
plaintiff  bargained  to  buy  of  the  defendant,  and  the  defendant 
agreed  to  sell  to  him,  a  dwelling-house  and  fixtures,  for  the  resi- 
due of  a  term  then  and  still  unexpired,  to  commence  from  the  1st 
of  January,  1840,  for  £G0  ;  and  the  defendant  promised  to  execute 
a  proper  conveyance,  make  out  an  abstract  of  title,  and  deliver  pos- 
session from  the  1st  of  January,  1840,  &c.  At  the  trial,  the  fol- 
lowing paper,  signed  by  the  defendant,  was  read  in  evidence :  "  I 
agree  to  sell  the  house  and  fixtures.  No.  163,  Piccadilly,  to  com- 
mence from  the  1st  of  January  next,  for  <£60."  Held,  this  docu- 
ment imported  the  sale  of  a  fee-simple,  and  did  not  sustain  the 
contract  alleged.- 

i  Hopei;.  Ellis,  1  Barn.  &  Ad.  498. 
2  Hughes  V.  Parker,  8  Mees.  &  W.  244. 


296  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    XIX. 

6.  And  an  executory  contract  reqiiires  a  conveyance  in  fee,  if 
such  be  the  manifest  intention,  though  no  words  of  inheritance  are 
used.  Thus  a  lease  was  made  for  seven  years,  with  the  right  on 
the  part  of  the  tenant  to  take  the  property  upon  a  certain  ground- 
rent  at  any  time  within  the  first  three  years.  Tlie  land  was  ac- 
cordingly conveyed  in  fee  within  the  time,  and  the  tenant  imme- 
diately conveyed  to  a  third  person,  subject  to  the  ground-rent.  It 
was  held,  that  by  the  lease  the  tenant  took  an  equitable  title  in  fee, 
although  no  words  of  inheritance  were  used  in  the  lease,  it  being 
manifest  from  the  instrument  that  a  fee-simple  was  intended  ;  the 
parties  having  carried  out  that  intention  by  the  subsequent  convey- 
ance ;  and  the  tenant  having  made  valuable  improvements  upon 
the  premises.^ 

7.  Sometimes  a  lease  itself  contains  a  covenant  to  convey  in 
fee-simple.  In  case  of  such  a  covenant,  allowing  a  lessee  to  pur- 
chase the  fee  at  a  specified  sum,  the  law  intends  that  the  rent  was 
fixed  at  the  amount  reserved,  as  an  inducement  to  the  purchase. 

8.  The  words,  "  shall  have  liberty  to  purchase,"  contained  in  a 
covenant,  require  a  clear  title,  free  from  a  claim  of  dower,  and  all 
other  incumbrances  ;  that  is  the  whole  title? 

8  a.  A  lessee  for  years,  with  an  option  at  certain  periods  to  pur- 
chase, and  making  that  option,  was  considered  owner  ab  initio,  for 
the  benefit  of  the  heir ;  the  price  to  be  paid  by  the  executor,^ 

9.  Where  a  contract  of  sale  provides,  that  the  vendee  should 
have  the  free  use  of  a  house,  while  he  is  working  for  the  benefit  of 
a  mill  on  the  premises,  the  conveyance,  given  in  pursuance  of  the 
contract,  need  not  contain  such  provision,  the  contract  itself  operat- 
ing as  a  sufficient  lease.'' 

9  a.  In  a  very  late  English  case,  the  question  arose,  whether  an 
agreement  to  let  certain  premises  for  a  term  of  years  implies  a  good 
title  to  those  premises.  In  deciding  this  point  affirmatively,  Willes, 
J.,  remarks,  "  This  raises  the  question  whether  such  an  agreement 
is  merely  an  agreement  to  sign  a  piece  of  parchment.  ...  A  lease 
for  seven  years  is  really  only  a  sale  of  land  for  that  period,  and  all 
sales  of  land  imply  a  stipulation  that  the  vendor  has  a  good  title. 
There  is  no  authority  to  the  contrary,  except  a  dictum  of  Lawrence, 
J.  The  first  case  on  the  subject  is  Gwillim  v.  Stone.^  .  .  .  The  agree- 

1  Gaule  V.  Bilyeau,  '25  Penn.  521.  *  Emmons  v.  Kiger,  23  Ind.  483. 

'■2  Jane,  &c.  1  Edw.  1.  5  3  Taun.  433. 

^  Daniels  v.  Davison,  16  Ves.  249. 


CHAP.    XIX.]  TITLE    TO    LEASEHOLDS.  297 

meiit  was  to  grant  a  lease  contaiiiiiig  the  usual  covenants ;  and 
Lord  Mansfield's  judgment  rests  on  the  ground  tliat  the  plaintiff 
was  calling  for  more.  .  .  .  Lord  Mansfield  only  intended  to  decide 
that  the  plaintiif  was  not  entitled  to  recover  a  large  sum  which  he 
had  expended  before  he  obtained  the  lease.  Lawrence,  J.,  it  is  true, 
says,  that  he  had  always  understood  that  in  purcliases  of  land  the 
rule  caveat  emptor  applied  ;  but  I  cannot  think  that  this  is  correctly 
reported,  for  it  was  already  settled  law  that,  on  a  sale  of  land,  a 
covenant  for  a  good  title  was  implied.  Following  that  case  I  may 
refer  to  Temple  v.  Brown,^  where  the  Court  said,  that  the  question 
was  a  very  momentous  one,  and  advised  a  settlement.  .  .  .  Lord  St. 
Leonards,  in  his  work  on  Vendors  and  Purchasers,  puts  agreements 
for  granting  leases,  and  for  the  sale  of  leaseholds,  in  the  same  cate- 
gory, and  says  that  the  lessee  is  entitled  to  call  upon  the  lessor  for 
an  inspection  of  his  title.  .  .  .  We  find  next  Roper  v.  Coombes,^ 
with  respect  to  which  he  seems  to  take  the  view  .  .  .  that  '  lease ' 
must  mean  '  a  valid  lease.'  Speaking  of  Fildes  v.  Hooker,^  he  says, 
'  The  Master  of  the  Rolls  decided  tliat  the  intended  lessor  ivho  was 
plaintiff,  could  not  enforce  a  specific  performance  without  produ- 
cing the  original  lessor's  title.  But  it  still  remains  undecided, 
whether  a  lessee  can  as  plaintiff  call  for  the  original  lessor's  title.' 
It  is  a  question  .  .  .  which  appears  to  be  already  settled.  A  per- 
son who  agrees  to  let  land,  agrees  to  grant  a  valid  lease,  as  a  per- 
son who  agrees  to  sell  land  agrees  to  execute  a  valid  conveyance 
of  it."  4 

10.  It  has  already  been  considered  (ch.  13),  how  far  non-com- 
pliance in  part  with  the .  terms  and  conditions  of  sale  furnishes 
ground  for  avoiding  the  contract  or  demanding  proportional  com- 
pensation. Most  of  the  cases  on  this  subject  relate  to  the  transfer 
of  estates  in  fee-simple.  But  substantially  the  same  principles 
have  been  applied  to  the  sale  of  leasehold  interests. 

11.  It  has  been  held,  that  a  lease  deliberately  executed  cannot 
be  set  aside,  on  account  of  an  unfounded  though  justifiable  asser- 
tion of  the  lessor  pending  the  treaty,  there  being  no  wilful  mis- 
representation ;  nor  on  the  ground  of  mistake,  from  an  omission  of 
a  general  warranty ;  such  warranty  not  constituting  part  of  the 
agreement.^    So  A.  having  agreed  to  purchase  of  B.  the  remainder 

1  6  Taun.  60.  ^  6  B.  &  C.  534.  3  2  Uer.  424. 

*  Stranks  v.  St.  John,  Law  Rep.  (Eng.),  June,  1867,  p.  878. 
5  Legge  V.  Croker,  1  Ball  &  Beat.  506. 


298  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XIX. 

of  a  term,  B.  delivered  him  the  lease,  in  order  that  he  might  procure 
an  assignment.  A.  then  obtained  an  enlargement  of  the  term 
from  the  original  landlord,  and  refused  to  accept  an  assignment  or 
pay  the  full  price,  because  B.'s  under-tenant  had  removed  fixtures. 
Held,  no  sufficient  objection  to  accepting  the  assignment.^  So  a 
particular,  describing  a  lease  as  subject  to  notice  to  quit,  is  not 
inconsistent  with  a  covenant  that  the  tenant  shall  hold  over  for  a 
certain  time  "  after  the  end  of  the  term ; "  that  being  upon  the 
context  distinguished  from  the  "  other  sooner  determination ; " 
and  time,  generally,  not  being  of  the  essence  of  the  contract.^ 

12.  The  principle  of  compensatio}i(^a)  has  been  applied  to  the 
sale  of  leasehold  estates,  where  the  contract  is  but  partially 
completed.  Thus,  the  defendant  contracted  to  sell  an  inn  to  the 
plaintiff,  and  in  the  treaty  represented  to  him,  that  the  agreement 
under  which  the  tenant  in  possession  held  it  was  void,  and  that  he 
would  give  the  plaintiff  possession  at  Michaelmas  following.  He 
had  given  the  tenant  notice  to  quit  at  that  time ;  but  the  tenant 
did  not  quit.  Held,  tlie  plaintiff  might  be  released  from  the  agree- 
ment, or  at  his  election  perform  it,  and  have  compensation,  with 
costs.^  So  in  case  of  a  bill  for  general  relief,  the  plaintiffs  entered 
into  an  agreement  with  the  defendants  for  a  lease  of  thirty-one 
years,  but  could  obtain  from  them  a  legal  lease  for  only  twenty-one 
years,  and  a  covenant  for  a  furtber  term  of  ten  years.  Although 
the  bill  was  framed  with  a  view  to  a  different  relief,  yet,  inasmuch 
as  upon  the  whole  statement  of  the  bill  such  appeared  to  be  the 
equity  between  the  parties,  and  in  order  to  avoid  future  litigation, 
the  Court  decreed  that  the  plaintiffs  should  accept  the  lease  and 
covenants,  with  compensation.^  So  the  particular  of  a  church 
lease  represented  it  as  for  twenty-one  years,  with  covenants  for 
renewals  to  sixty-three  years  ;  the  lease  being  actually  for  lives ; 
and  the  covenants  limited  and  contingent.  Specific  performance 
was  decreed  upon  the  bill  of  the  purchaser,  with  compensation,  if 
to  be  ascertained,  by  reduction  of  the  purchase-money ;  if  not,  or 
if  the  plaintiff  would  so  take  it,  with  an  indemnity  ;  the  defendant 
proposing  an  option  to  take  it  as  it  was,  or  relinquish  the  con- 
tract.^ 

1  Parry  v.  Frame,  2  Bos.  &  PuU.  451.  «  Hanbury  v.  Litchfield,  2  Myl.  &  Kee. 

2  Hall  V.  Smith,  14  Ves.  426.  629. 

3  Besant  v.  Richards,  Tamlyn,  509.  5  Milligan  v.  Cooke,  16  Ves.  1. 

(a)  See  chap.  16. 


CHAP.    XIX.] 


TITLE   TO    LEASEHOLDS. 


299 


13.  But  where  a  bill  for  specific  performance  of  an  agreement 
for  a  lease,  signed  by  the  grantor  only,  and  contrary  to  his  leasing 
power,  of  which  the  plaintiff  had  notice,  was  afterwards  amended, 
and  prayed  an  execution  of  the  agreement  for  the  life  of  the  gran- 
tor, without  requiring  compensation  for  the  difTerence  of  interest; 
held,  the  bill  should  be  dismissed,  the  case  proved  for  the  plaintiff 
creating  doubts  and  suspicions  of  the  fairness  of  the  transaction.^ 
So  compensation  will  not  be  decreed,  if  the  purchaser  would  there- 
by lose  the  substantial  benefits  of  the  contract.  Thus  an  indefinite 
representation  by  the  vendor,  that  a  leasehold  estate  was  nearly 
equal  to  freehold,  being  renewable  upon  a  small  fine,  under  certain 
circumstances,  may  be  fraudulent,  and  furnish  ground  for  rescind- 
ing the  contract.^  So  where  leasehold  premises  are  sold  by  auc- 
tion, and  the  lease  containing  the  usiuxl  covenant  to  repair  is 
produced  and  read  to  the  bidders,  if  any  of  the  buildings  demised 
and  described  in  the  lease,  though  not  in  the  particulars,  have 
been  pulled  down,  the  purchaser  is  not  bound  to  complete  the  pur- 
chase, and  may  recover  back  his  deposit.^(«) 


1  O'Rourke  v.  Tercival,  2  Ball.  &  Beat. 


56. 


(a)  On  a  sale  of  a  leasehold  interest  of 
lands,  described  in  the  particulars  as  held 
for  a  term  of  twenty -three  years  at  a  rent 
of  .£55,  and  as  comprising  a  yard,  one  of 
the  conditions  was,  that,  if  any  mistake 
should  be  made  in  the  description  of  the 
property,  or  any  other  error  whatever 
should  appear  in  the  particulars  of  the 
estate,  it  should  not  annul  or  vitiate  the 
sale,  but  a  compensation  should  be  made, 
to  be  settled  by  arbitration.  The  yard 
was  not,  in  fact,  comprehended  in  the 
property  sold  for  the  term  at  £55,  but 
was  held  by  the  vendor  from  year  to  year, 
at  an  aditional  rent,  and  it  was  essential 
to  the  enjoyment  of  the  property  leased 
for  the  twenty-three  years.  It  did  not 
appear  that  the  vendor  knew  of  the  de- 
fect. Held,  this  defect  avoided  the  sale, 
and  was  not  a  mistake  to  be  compensated 
for  under  the  above  condition  ;  although, 
after  the  day  named  in  the  conditions  for 
completing  the  purchase,  and  before  action 
brought  by  the  vendee,  the  vendor  pro- 
cured a  lease  of  the  yard  for  the  term 
to  the  vendee,  and  oflered  it  to  him. 
Dobell  V.  Hutchinson,  8  Adol.  &  Ell.  33-5. 

The  conditions  of  sale  of  the  lease  of  a 
public  house  described  it  as  "  a  free  pub- 
lic house."  The  lease  contained  a  cove- 
nant that  the  lessee  and  his  assigns  should 


-  Fenton  i\  Brown,  14  Ves.  143. 
^  Granger  v.  Worms,  4  Campb.  83. 

take  their  beer  from  a  particular  Ijrewer ; 
this  lease  was  all  read  over  by  the  auc- 
tioneer at  the  sale,  and  he  said  by  mistake 
that  it  was  a  free  puhlic  /lonse,  and  that  this 
covenant  hatl  been  decided  to  1)6  bad. 
Held,  a  purchaser,  who  heard  the  lease 
read  over,  was  not  bound  to  complete  the 
purchase,  but  was  entitled  to  recover  back 
the  deposit.  Jones  v.  Edney,  3  Campb. 
285. 

A  lessee  of  lands,  subject  to  a  covenant 
against  certain  obnoxious  trades,  with  a 
proviso  for  re-entry,  grants  underleases  of 
houses  erected  on  the  land,  not  containmg 
a  similar  covenant  and  proviso.  Held, 
that  a  purchaser  by  auction  of  houses  on 
the  land,  and  of  the  improved  ground 
rents  of  the  houses  so  underlet,  might  re- 
cover back  his  deposit-money,  this  omis- 
sion in  the  underleases  not  liaving  been 
mentioned  in  the  conditions  of  sale.  War- 
ing V.  Hoggart,  1  Ky.  &  Mood.  39. 

Certain  leasehold  houses  were  sold  by 
auction,  described,  in  the  particulars  and 
conditions  of  sale,  as  a  well-secured  rental 
with  reversionary  interest,  and  an  eligible 
investment,  but  without  warranty  of  title. 
By  a  local  act,  for  the  establisliment  of  the 
South  iMudon  Markit  Conijiaiii/,  the  com- 
pany were  authorized  to  treat  for,  pur- 
chase, and  take,  the  premises  for  the  pur- 


300 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XIX. 


14.  Ill  the  sale  and  purchase  of  leaseholds,  as  in  other  cases, 
the  legal  rights  of  the  parties  may  be  varied  by  notice. (^a')     Thus 


poses  of  the  act.  No  notice  was  given  of 
this  Hability  in  tlie  particulars  and  condi- 
tions, and  tiie  vendee  had  no  notice  of  it. 
The  conditions  contained  no  express  war- 
ranty of  title.  Held,  this  sale  did  not 
involve  a  warranty  of  a  clear  title,  free 
frona  all  charges,  inciniibi'ances,  and  lia- 
bilities ;  but  the  purchaser  was  entitled  to 
rescind  the  contract.  Ballard  v.  Way,  1 
Mees.  &  Wels.  520. 

Sale  by  auction,  of  a  lot  described  in 
the  particulars  as  "  eleven  houses.  No.  1, 
2,  3,  &c.,  situate,  &c.,  held  by  lease  of  A." 
Previous  to  the  lease,  a  small  part  of  the 
ground  of  No.  2  was  subtracted  from  the 
possession  of  the  lessee ;  but  the  lease  con- 
tained a  description  and  plan  in  the  mar- 
gin of  the  whole  ground-plot,  including  this 
part.  Held,  although  in  equity  A.  should 
not  be  entitled  to  enforce  the  covenants  in 
the  lease  as  to  that  part  of  the  ground, 
yet,  the  particulars  referring  to  the  lease, 
without  an  exception  of  this  plot,  the  pur- 
chaser was  entitled  to  demand  a  title  to 
the  whole  estate  contained  in  the  lease, 
and  an  assignment  of  the  lease  was  not 
sufficient.  Tomkins  v.  White,  3  Smith, 
435. 

A  lessor  covenanted,  that,  if  the  lessee 
should  erect  a  two-story  dwelling-house, 
corresponding  in  elevation  with  a  house 
already  built  on  a  part  of  the  premises, 
the  lessor,  at  the  termination  of  the  lease, 
would  pay  for  the  building,  at  a  valuation 
to  be  made  by  appraisers,  to  be  appointed 
by  the  parties.  The  tenant  erected  a 
building  whicli  did  not  correspond  in 
height  with  the  dwelling  referred  to,  and 
was  finished  for  a  cabinet-maker's  shop, 
but  was  capable  of  being  converted  into  a 
dwelling-house  in  a  few  days'  time,  at  a 
moderate  expense.  The  lessor  had  early 
knowledge  of  the  character  of  the  build- 
ing, and  made  no  objection,  nor  did  he 
give  any  intimation  that  he  should  refuse 
to  pay  for  it,  until  just  before  the  lease 
expired,  when  it  was  too  late  to  make  the 
building  conform  to  the  requirement  of 
the  lease.  Before  the  lease  expired,  he 
concurred  in  the  appointment  of  apprais- 
ers, who  met  and  examined  the  premises 
in  presence  of  the  parties.  Three  days 
before  the  lease  expired,  the  lessor  in- 
formed the  appraisers  that  the  building 
was  not  according  to  contract,  and  insisted 
that  the  lessee  had  no  claim  for  compen- 
sation. No  award  was  made  by  the  ap- 
praisers. On  a  bill  filed  by  the  lessee  lor 
relief,  and  to  compel  payment  of  the  value 
of  the  building ;  held,  not  a  case  of  fraud  ; 


that  the  lessor  might  set  up  the  defence, 
that  the  building  did  not  conform  to  the 
contract ;  and  that  the  bill  could  not  be  sus- 
tained.    Pike  V.  Butler,  4  Comst.  300. 

The  plaintiff,  in  the  Jirst  and  third 
counts  of  his  declaration,  alleged  that,  at 
the  time  of  making  the  agreement  with 
the  defendant,  he  was  possessed  of  a  house 
for  a  certain  term  of  years,  to  expire  on  the 
25?A  of  December,  185G  ;  and,  in  the  second, 
that  lie  was  entitled  to  the  term  for  thirty- 
two  years,  under,  and  by  virtue  of,  a  certain 
contract.  The  proof  was  that  the  plaintiff 
was  possessed  of  a  term  of  twelve  years 
only  ;  and  there  was  no  contract  or  agree- 
ment under  which  he  was  at  that  time 
entitled  to  an  extension  of  the  term. 
Held,  that  this  was  a  fatal  variance,  al- 
though it  appeared  that  the  plaintiff  had 
since  become  possessed  of  a  lease  to  ex- 
pire in  December,  1856.  Routledge  v. 
Grant,  1  Mood.  &  P.  717. 

(«)  While  the  purchaser  of  a  leaseliold 
may  incur  certain  liabilities  and  obliga- 
tions by  notice,  a  lessee  may  by  the  same 
means  acquire  certain  rights  as  against  a 
purchaser  from  the  landlord.  Thus, 
where  a  tenant  for  life  granted  leases  for 
lives  under  a  power,  and  bound  himself, 
upon  the  dropping  of  a  life,  to  grant  a  new 
lease,  with  the  same  provision  tor  renewal, 
on  the  death  of  any  person  to  be  named 
in  any  future  lease,  and  afterwards  joined 
in  a  sale  ;  though  the  power  is  exceeded, 
yet,  if  a  life  drops  in  the  life  of  the  lessor, 
the  purchaser,  having  notice,  must  specifi- 
cally perform  by  granting  a  new  lease  with 
the  same  provision. 

General  notice  to  a  purchaser,  that 
there  are  leases,  is  notice  of  all  their  con- 
tents. So  a  purchaser,  being  told  that  a 
part  of  the  estate  was  in  possession  of  a 
tenant,  was  held  bound  by  the  lease.  Tay- 
lor V.  Stibbert,  2  Ves.  437. 

C,  being  about  to  marry,  applied  to  A., 
his  landlord,  and  requested  him  to  change 
a  cestui  (pie  vie  in  his  lease,  by  inserting,  in 
the  place  of  an  old  life,  the  name  of  his 
intended  wife,  which  A.  by  letter  prom- 
ised to  do.  Upon  the  faith  of  such  prom- 
ise the  marriage  was  had,  and  the  demised 
premises  settled  upon  the  wife.  Upon  a 
bill  by  the  wife  (0.  being  dead),  it  was 
held,  that  she  would  have  been  entitled  to 
specific  execution  against  A. ;  and  the 
estate  of  A.  having  been  sold  to  U.,  who 
was  deemed  under  the  circumstances  to 
have  had  notice  of  the  agreement,  he  was 
decreed  specifically'  to  perform  it.  Crof- 
ton  V.  Ormsby,  2  Scho.  &  Let'.  583. 


CHAP.    XIX.]  TITLE   TO    LEASEHOLDS.  301 

the  purchaser  of  a  leasehold  is  held  to  contract,  with  notice  of  the 
clauses  of  the  lease. ^  And  a  purchaser  of  the  right  and  interest 
of  another,  under  a  contract  for  a  lease,  with  full  notice  of  the 
nature  of  it,  cannot  object  to  payment  of  the  consideration,  either 
on  the  ground  that  such  contract  is  not  binding  on  the  vendor,  or 
for  want  of  title.^  So  the  mortgagee  of  a  lease,  which  recited  the 
surrender  of  a  former  lease,  which  was  in  consideration  of  the 
surrender  of  a  former  lease,  in  wliich  the  plaintiffs  title  appeared, 
was  held  to  have  notice  of  the  title.^ 

15.  But,  a  landlord  having  given  notice  to  his  lessee  (under  a 
covenant  in  the  lease),  that  he  would  re-enter  if  the  premises  were 
not  put  into  repair  within  three  months  ;  if  an  auctioneer  sell  the 
lease  without  communicating  such  notice,  the  vendee  may  recover 
his  deposit,  although  he  knew  the  dilapidated  state  of  the  premises 
at  the  time  of  sale.* 

16.  Questions  have  sometimes  arisen  as  to  the  introduction  of 
parol  evidence  to  explain  or  vary  written  agreements  relating  to 
leaseholds.  In  general,  such  evidence  is  not  admissible  for  this 
purpose.  Thus,  to  prove  a  rent  beyond  that  expressed  in  the 
agreement.^  Nor  (in  support  of  a  bill  for  specific  performance)  to 
prove,  from  conversations  before  and  at  the  time  of  signing  such 
agreement,  that  the  premises  were  to  be  "  clear  of  all  taxes,"  the 
memorandum  being  written  by  the  lessee,  and  these  words 
omitted.^  But  specific  performance  was  decreed  (after  a  trial  at 
law)  of  a  parol  undertaking  by  the  assignee  of  a  lease,  to  indem- 
nify the  original  lessee  (the  vendor)  against  the  rent  and  cove- 
nants ;  a  presumption  arising  from  the  nature  of  the  transaction, 
and  the  assignment  being  "  subject  to  the  rents  and  covenants  on 
the  part  of  the  lessee,"  although  the  conditions  of  the  auction  sale 
expressed  no  such  engagement." 

17.  A  purchaser,  who  in  his  written  contract  stipulates  for  a 
good  title,  cannot  be  required  to  complete  the  purchase  upon  a 
defective  title,  on  the  ground  of  a  verbal  waiver  of  such  stipula- 
tion.^(a) 

1  Walter  v.  Maunde,  1  Jac.  &  W.  181 ;         »  Preston  v.  IMerceau,  2  Black.  1250. 
Taylor  v.  Stibbert,  2  Ves.  437.  «  Rich  v.  Jackson,  4  Bro.  C.C.  518. 

2  Baxter  v.  ConoUy,  1  Jac.  &  W.  576.  ^  Pember  v.  Matliers,  1  Bro.  C.C.  52. 

3  Coppin  V.  Fernyhough,  2  Bro.  C.C.  ^  Goss  v.  Lord  Nugent,  2  Nev.  &  Man. 
291.  35. 

*  Stevens  v.  Adamson,  2  Stark.  422. 

(a)  In  assumpsit,  the  first  count- recited  and  defendant  take,  a  lease  of  lands  ;  and 
an  agreement,  tliat  plaintiff'  should  grant,     that  all  straw,  &c.,  on  the  lands  when  pos- 


302 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XIX. 


18.  The  application  of  the  Statute  of  Frauds  to  the  sale  and 
purchase  of  leasehold  interests  has  often  been  brought  in  ques- 
tion. 

19.  An  agreement,  by  one  having  a  term  for  years,  to  give  up 
possession  to  another,  and  allow  him  to  become  tenant  for  the 
residue  of  the  term,  in  consideration  of  his  paying  in  part  for  cer- 
tain repairs,  is  within  the  statute.^  So  an  agreement  by  a  termor 
to  quit  on  a  certain  day,  and  pay  all  outgoings  up  to  that  time,  in 
consideration  of  a  sum  to  be  paid  him  by  one  who  has  agreed  with 
the  landlord  for  a  lease  at  the  end  of  the  subsisting  one.^  So  the 
statute  is  a  good  defence  to  a  parol  variation  of  an  agreement  for 


1  Buttemer  v.  Hayes,  3  Jur.  704. 


2  Smith  V.  Tombs,  3  Jur.  72. 


session  was  given  up,  should  be  vahied  by 
persons  named  respectively  by  the  parties, 
and  the  amount  paid  ;  that,  on  the  execu- 
tion of  the  lease,  defendant  should  accept 
it,  and  execute  a  counterpart ;  and  that 
either  party  making  default  should  forfeit 
£300 ;  that  there  were  mutual  promises 
to  perform  the  agreement ;  that  defendant 
entered  and  took  possession  of  the  straw, 
&c. ;  that  he  afterwards  proposed  that  the 
straw,  &c.,  should  be  valuecl  to  the  plain- 
tiff by  a  third  person,  and  the  plaintiff 
assented  ;  that  it  was  so  valued  ;  that  the 
plaintiff  was  ready  to  grant  the  lease,  but 
the  defendant  did  not  pay  the  amount  of 
the  valuation. 

Second  count,  for  goods  bargained  and 
sold,  and  taken  by  the  defendant  under 
such  bargain  and  sale. 

Plea  to  the  first  count,  that  the  first 
agreement  was  in  writing,  signed  by  plain- 
tiff and  defendant,  and  the  proposal  and 
assent  for  the  valuation  only  verbal.  To 
the  second  count,  that  the  goods  consisted 
of  straw,  &c.,  which  were  bargained  and 
sold  under  a  written  agreement,  by  which 
they  were  to  be  valued  by  persons 
chosen  respectively  by  plaintiff  and  de- 
fendant ;  and  that  no  such  valuation  had 
been  made,  butonly  a  valuation  (as  above); 
that  defendant  was  ready,  and  had  pro- 
posed that  tliey  sliould  be  valued  as  in  the 
agreement;  but  plaintiff  refused. 

Keplication,  1,  to  the  plea  to  tlie  first 
count,  that  by  the  proposal,  assent,  and 
valuation,  the  parties  respectively  waived 
so  much  of  the  agreement  as  related  to 
the  valuation,  and  substituted  the  other 
valuation ;  2,  to  the  plea  to  the  second 
count,  that  the  straw,  &c.,  was  bargained 
and  sold  under  the  agreement  in  the  first 
count  mentioned;  that  afterwards  defend- 
ant proposed,  &c.  (as  in  first  count),  and 


plaintiff  assented,  and  it  was  valued  ac- 
cordingly ;  by  means  of  which  plaintiff 
and  defendant  waived,  &c.  (as  in  the  repli- 
cation to  the  plea  to  the  first  count). 

Rejoinder  to  replication  1,  that  the 
waiver  and  substitution  were  by  word  of 
mouth  only.  To  replication  2,  that  the 
proposal  and  assent  were  by  word  of 
mouth  only. 

On  general  demurrer  to  the  rejoinder  ; 
held,  that  the  original  was  an  entire  agree- 
ment relating  to  an  interest  in  lands,  and 
necessarily  in  writing ;  that,  even  if  the 
parties  could  waive  the  whole  verbally, 
they  had  not  done  so ;  and  that  a 
part  could  not  be  verbally  waived,  even 
though  in  itself  not  required  to  be  in 
writing.  Harvey  v.  Graham,  5  Adol.  & 
EU.  61. 

In  a  very  late  case,  lapse  of  time  in 
connection  with  a  new  agreement  was 
held  to  constitute  a  waiver  as  to  leased 
property. 

In  August,  1856,  the  plaintiff  agreed  to 
let  a  house  to  the  defendant  for  seven, 
fourteen,  and  twenty-one  years,  to  be 
kept  in  repair,  painted  and  papered,  by 
the  defendant.  The  defendant  entered, 
and  in  1859  the  plaintiff  agreed  with  him 
to  accept  A.,  who  had  just  before  taken 
possession,  as  tenant,  the  defendant  guar- 
anteeing the  rent.  A.  paid  tlie  rent  till 
1863,  when  the  defendant  gave  notice  to 
terminate  his  tenancy  at  the  end  of  the 
first  seven  years.  A.  and  the  defendant 
having  both  denied  their  liability  to  paint 
and  paper,  in  November,  1864,  the  plain- 
tiff files  a  bill  to  compel  the  defendant  to 
accept  a  lease.  Held,  after  the  new 
agreement  of  1859,  and  the  long  delay,  the 
bill  could  not  be  maintained.  Moore  v. 
Marrable,  Law  Rep.  (Eng.)  Eq.  March, 
1866,  p.  216. 


CHAP.    XIX.]  TITLE   TO    LEASEHOLDS.  303 

a  lease.  But  not  if  it  only  amounts  to  a  waiver  in  part,  or  to  a 
declaration  of  trust.^  A  parol  agreement  made  in  the  course  of 
proceeding  before  an  arbitrator,  that  he  shall  determine  as  to  a 
lease  to  be  granted,  is  within  the  statute,  and  an  award  for  a  lease 
cannot  be  enforced. ^ 

20.  Upon  the  point,  wliat  constitutes  a  sufficient  signing  or 
memorandum,  it  has  been  held  that  the  bare  entry  of  a  steward, 
in  his  lord's  contract-book  with  his  tenants,  is  not  evidence  of 
itself  of  an  agreement  for  a  lease  between  the  lord  and  a  tenant.^ 
But  where  A.  agrees  by  parol  with  B.  for  a  lease,  which  is  drawn, 
and  then  perused  and  corrected  by  A.'s  counsel,  and  afterwards 
engrossed  and  executed  by  B. ;  it  has  been  doubted  whether  this 
is  within  the  statute  as  to  A.*  And  if  a  party  has  entered  into  a 
parol  agreement  for  a  lease,  and  a  draft  of  it  is  prepared,  though 
the  agreement  is  void  under  the  statute,  yet  he  will  be  bound  by 
an  indorsement  on  the  draft  referring  to  the  case.^ 

21.  The  question  has  been  raised,  whether  a  signing  hy  an  agent 
is  a  sufficient  compliance  with  the  statute. 

22.  A.  was  tenant  for  life,  with  power  to  lease  by  deed,  reserving 
the  best  yearly  rent.  The  plaintiff  entered  into  possession,  and 
expended  money  in  building  under  an  agreement  for  a  lease,  proved 
only  by  the  memorandum  in  writing,  entered  in  the  book  of  A.'s 
authorized  agent,  and  signed  by  the  agent's  clerk,  although  sliown 
to  have  been  approved  by  the  agent,  and  according  to  the  usual 
course  of  business.  A.  died,  and  a  bill  was  brought  for  specific 
performance  against  the  remainder-man.  Held,  first,  no  sufficient 
agreement  in  writing,  not  being  signed  by  an  agent  properly 
authorized,  and,  if  it  had  been,  the  memorandum  not  containing 
some  of  the  material  terms  of  a  lease,  which  were  left  to  be  made 
out  by  parol  evidence ;  secondly,  not  to  be  established  as  a  parol 
agreement  in  part  performed,  both  as  it  was  not  the  agreement  of 
the  principal,  nor  of  the  authorized  agent,  and  also  because  the 
remainder-man  had  been  guilty  of  no  fraud,  upon  which  to  cliarge 
him  with  the  conveyances  of  the  contract.  Also,  that  the  plaintiff 
was  not  entitled  to  compensation  from  A.'s  representatives,  for 
money  laid  out  by  him  on  the  faith  of  the  alleged  agreement ;  such 

1  Jordan  v.  Sawkins,  3  Bro.  C.C.  388 ;  3  Cliarlewood  v.  Duke  of  Bedford,  1 
1  Ves.  402.                                                        Atk.  4'J7. 

2  Walters  v.  Morgan,  2  Cox,  3G9.  *  Lowtlier  v.  Carril,  1  Vern.  221. 

*  Shippey  v.  Derrison,  5  Esp.  Ca.  190. 


304  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XIX. 

compensation  being  in  the  nature  of  damages,  and  the  fault  lying 
in  the  plaintiff's  own  negligence.^ 

23.  Bill  to  recover  a  balance  of  purchase-money  against  two 
defendants.  Hendon,  one  of  the  defendants,  contracted  in  writing 
with  the  plaintiff  for  the  purchase  of  a  college  lease ;  and  the 
plaintiff  agreed  to  renew  the  lease  in  the  name  of  Hendon,  or  such 
person  as  he  should  nominate  and  appoint.  Hendon  directed  the 
plaintiff  to  renew  the  lease  in  the  name  of  Cox,  the  other  defend- 
ant, and  declared  he  bought  it  for  him  as  his  agent.  The  plaintiff 
brings  the  bill  against  both  for  the  residue  of  the  purchase-money. 
The  decree  at  the  rolls  was  against  both  defendants,  to  pay  the 
money,  and,  in  case  Hendon  should  pay  it,  that  he  might  prosecute 
the  decree,  in  the  name  of  the  plaintiff,  against  Cox.  Cox  appeals, 
for  that  he  did  not  give  any  authority  in  writing  to  Hendon  to  buy 
the  lease  for  him  as  required  by  the  Statute  of  Frauds.  Decree 
affirmed. 2 

24.  With  regard  to  the  effect  of  part-performance  upon  the 
validity  of  a  parol  agreement ;  specific  execution  of  a  parol  agree- 
ment for  a  lease  for  three  lives,  proved  by  one  witness,  was  re- 
fused ;  the  answer  admitting  an  agreement  for  one  life  only, 
supported  by  the  testimony  of  one  witness,  and  not  inconsistent 
with  the  evidence  of  part-performance  given  by  the  plaintiff.^  So, 
in  case  of  a  bill  for  the  execution  of  a  parol  agreement  for  a  lease 
of  a  house  to  the  plaintiff,  who,  in  confidence  of  the  agreement, 
had  laid  out  money ;  a  plea  of  the  Statute  of  Frauds  was  allowed.^ 
But,  in  case  of  a  bill  for  specific  performance  of  a  parol  agreement 
for  a  lease,  charging  possession  taken  and  other  acts  of  part- 
performance  ;  a  plea  of  the  statute,  and  answer,  not  denying  the 
acts  alleged,  but  stating  that  the  defendant,  being  advised  that  he 
entered  as  tenant  at  will,  gave  notice  to  quit,  was  overruled.^ 
So,  in  case  of  an  agreement  for  a  lease,  in  part  performed  by  pos- 
session taken,  though  without  express  assent,  acquiesced  in,  and 
expenditure  permitted ;  specific  performance  was  decreed  accord- 
ing to  the  plaintiff's  evidence,  against  the  assertion  of  a  right  of 
resumption  by  the  answer,  and  one  witness,  not  proving  that  it 
was  admitted.^  So  an  agreement  in  writing  for  a  lease,  not 
signed  by  the  defendant,  was  specifically  executed,  on  the  ground 

1  Blore  V.  Sutton,  3  Mer.  237.  *  Hollis  v.  Whiteing,  1  Vera.  151. 

2  Waller  v.  Hendon,  5  Vin.  Abr.  524.  5  Bowers  v.  Cator,  4  Ves.  91. 

3  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1.  6  Gregory  v.  Migliell,  18  Ves.  328. 


CHAP.    XIX.]  TITLE   TO    LEASEHOLDS.  305 

of  part-performance,  viz.,  possession  taken  and  rent  paid  according 
to  the  agreement.^  So  specific  performance  of  a  parol  agreement 
to  grant  a  lease  was  decreed  on  the  testimony  of  one  witness,  con- 
firmed by  circumstances,  against  the  denial  in  the  answer,  after 
part-performance  by  delivery  of  possession. ^  So,  in  case  of  a  bill 
for  specific  performance  of  a  parol  agreement  to  renew,  the  plain- 
tiff having  built  a  house  ;  the  only  witness  for  the  plaintiff  proved 
an  agreement  different  from  that  in  the  bill ;  and  two  defendants  by 
answer  stated  an  agreement  different  from  both.  Held,  in  strict- 
ness, the  bill  ought  to  be  dismissed  ;  but  specific  performance  was 
decreed  according  to  the  answers,  with  costs  against  the  plaintiff.^ 
So,  in  case  of  a  bill  for  specific  performance  of  a  parol  agreement 
to  let  lands  ;  the  defendant  had  suffered  his  wife  to  receive  money 
from  the  plaintiffs,  in  consideration  of  fines  (he  being  incapable 
of  receiving  fines),  and  had  written  a  letter  to  a  third  person, 
acknowledging  the  demise,  and  stating  that  he  was  ready  to  make 
leases.  These  circumstances  were  held  sufficient  to  take  the  case 
out  of  the  Statute  of  Frauds.*  So  a  decree  was  made  for  specific 
performance  of  an  agreement  to  grant  a  lease,  of  which  only  one 
part,  signed  by  the  plaintiff,  was  found  in  the  possession  of  the 
defendant,  upon  the  grounds  of  possession,  drafts  prepared  and 
approved,  and  the  execution  deferred  only  till  repairs  were  com- 
pleted. But  an  extension  of  the  term,  according  to  a  variation  of 
the  agreement,  also  in  writing,  was  refused,  on  the  ground  of  want 
of  consideration.^ 

25.  Bill  by  the  tenant  of  a  farm,  for  specific  performance  of  a 
parol  agreement  for  a  new  lease,  stating  improvements  made  at 
a  considerable  expense,  continuance  of  possession  after  the  expira- 
tion of  the  old  lease,  and  payment  of  an  increased  rent  under  the 
agreement.  Plea  of  the  Statute  of  Frauds  ordered  to  stand  for  an 
answer,  with  liberty  to  except.^ 

26.  Bill  for  specific  performance  of  a  parol  agreement  to  grant 
a  lease  for  twenty  years,  alleging  acts  in  part-performance.  Flea 
of  the  Statute  of  Frauds  ;  and  answer,  denying  that  the  acts  were 
done  in  part-performance.  The  plea  was  saved  to  the  hearing, 
■with   liberty  to   except ;    the   Lord  Chancellor   inclining   to   the 

1  Kine  v.  Balfe,  2  Ball  &  Beat.  343.  *  Hartly    v.    Wilkinson,    Irish    Term 

2  Morphett  v.  Jones,  1  Swanst.  172.  Rep.  357. 

3  Mortimer  v.  Orchard,  2  Ves.  243.  5  Robson  v.  Collins,  7  Ves.  133. 

6  Wills  i\  Stradling,  3  Ves.  378. 
20 


306  LAW    OP   VENDORS   AND    PURCHASERS.  [CHAP.    XIX. 

opinion  that,  tliongli  the  agreement  is  admitted,  the  statute  may 
be  used  as  a  defence  to  the  suit.^ 

27.  Where  a  party,  of  whom  the  defendants  were  executors  and 
trustees,  verbally  agreed  with  the  plaintiff,  his  tenant,  to  lease  to 
him  for  twenty-one  years  at  an  increased  rent,  with  the  right  of 
purchasing,  and  the  plaintiff  paid  a  quarter's  rent  at  the  new  rate 
before  the  death  of  the  lessor ;  held,  a  sufficient  part-performance 
to  take  the  case  out  of  the  Statute  of  Frauds  ;  and  specific  perform- 
ance was  decreed.^ 

1  Moore  v.  Edwards,  4  Ves.  23.  2  Nunn  v.  Fabian,  Law  Rep.  (Eng.), 

Eq.  January,  1866,  p.  34. 


CHAP.    XX.]  RESCINDING    OF   SALES.  307 


CHAPTER   XX. 


RESCINDING    OF    SALES. 


1.    General  subject;  miscellaueous  grounds  13.    Waivei: 

for  abandoning  a  contract.  16.    Mode  of  rescinding;  bj'  vendor  or  ven- 

7.    M'mhscriptiiin  of  the  property.  dee ;  form  of  action. 

11.  Compemntion.  26.   Interest,  improvements,  &c. 

12.  Presumption  of  rescission. 

1.  In  the  foregoing  chapters,  relating  to  the  subject  of  title,  it 
has  been  incidentally  considered,  for  what  defects  of  title  or  other 
variances  from  the  terms  of  the  contract  the  vendee  may  refuse 
to  complete  the  sale.  In  the  natural  order  of  topics,  we  proceed 
to  treat  of  the  rescinding  of  a  sale  of  real  property,  generally. 
This  will  involve  the  extensive  subjects  of  fraud,  mistake,  personal 
incapacity,  and  other  legal  or  equitable  grounds  for  avoiding  the 
contract.  In  the  present  chapter,  we  propose  to  consider  more 
particularly  those  causes,  which  are  independent  of  any  deceit  or 
misrepresentation,  and  pertain  exclusively  to  the  condition  of  the 
property  sold.  Reference  will  also  be  made  to  rescission  by  the 
vendor  as  well  as  the  vendee. 

1  a.  An  executory  contract,  in  which  there  has  been  a  total  fail- 
ure of  consideration,  will  not  be  enforced  either  at  law  or  in 
equity ;  but  when  the  contract  is  executed,  equity  will  not  rescind 
it,  except  for  fraud  or  palpable  mistake.^ 

2.  It  may  be  remarked,  that,  if  a  party  to  the  sale  has  himself 
abandoned  the  contract,  he  cannot  avail  himself  of  it  in  opposition 
to  a  legal  claim,  against  which,  until  abandoned,  it  would  have 
been  a  good  defence.  Thus,  the  defendant,  being  entitled  to  an 
undivided  moiety  of  a  piece  of  ground,  agreed  with  the  plaintiff, 
that,  in  case  either  of  them  should  purchase  the  other  moiety,  the 
whole  should  be  divided  in  a  particular  manner  between  them. 
This  moiety  was  sold  to  a  third  party,  whereupon  the  plaintiff  and 
defendant  further  agreed,  that  neither  of  them  would  purchase  it 

1  Rockafellow  v.  Baker,  41  Penn.  319. 


308  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XX. 

until  they  had  agreed  upon  a  sum  to  be  given  for  it,  subject  to  the 
former  agreement.  The  defendant  afterwards  refused  to  agree 
upon  the  price,  and,  the  plaintiff  having  purchased  the  moiety,  the 
defendant  refused  to  carry  the  agreement  into  effect.  Held,  in  a 
suit  for  partition,  the  defendant  was  bound  to  fix  a  price ;  also, 
that  he  had  abandoned  the  contract,  and  could  not  set  it  up  as  a 
bar.i 

3.  One  party  to  a  contract  cannot  abandon  it  as  against  the 
other,  although  the  former  had  no  legal  power  to  make  the  con- 
tract, and  although  the  collateral  circumstances,  with  reference  to 
which  the  contract  was  made,  have  ceased  to  exist.  Thus,  a  rail- 
way company  had  a  bill  before  Parliament  for  making  a  railway 
from  W.  to  S.,  with  a  line  diverging  to  N.  One  of  the  objections 
to  the  bill  was,  that  the  diverging  line  would  cross  another  rail- 
way line.  When  the  bill  was  in  committee,  it  was  ascertained 
that  this  objection  would  be  removed,  if  the  company  were  to 
obtain  an  estate  settled  on  A.  for  life,  with  remainders  over,  which, 
however,  by  their  bill  they  would  not  be  authorized  to  buy.  An 
agreement  was  entered  into  between  the  company  and  A.  to  pur- 
chase this  estate  from  A.,  and  to  perform  all  such  acts  as  might 
enable  A.  to  sell  it.  The  bill  was  passed,  without  obtaining  any 
powers  to  purchase  A.'s  estate,  and  omitting  the  diverging  line. 
The  line  from  W.  to  S.,  and  every  thing  connected  with  it,  were 
afterwards  abandoned  by  the  company.  In  a  suit  by  A.  against 
the  company,  for  specific  performance ;  held,  they  were  bound  to 
perform.^ 

4.  Nor  can  a  vendor  rescind  the  sale,  upon  the  ground  that  the 
plaintiff  (the  vendee)  has  wrongfully  taken  other  property,  instead 
of  the  property  sold.  Thus,  in  an  action  for  not  permitting  the 
plaintiff  to  carry  away  from  the  land  of  the  defendant,  according 
to  the  conditions  of  sale,  certain  trees  purchased  by  the  plaintiff, 
the  defence  was,  that  before  breach  the  plaintiff  fraudulently  felled 
and  carried  away  from  the  defendant's  lands  other  trees,  not  sold 
to  him,  as  and  for,  and  which  were  fraudulently  pretended  and 
represented  by  the  plaintiff  to  be,  the  trees  which  were  sold,  and 
which  were  equal  to  them  in  value  and  number.  Held,  an  insufii- 
cient  defence,  showing  neither  a  rescission  nor  an  estoppel.^ 

1  Morris  v.  Timmins,  1  Beav.  411.  3  Lewis  v.  Clifton,  25  Eng.  Law  &  Eq. 

2  Hawkes  v.  Eastern,  &c.  4  Eng.  Law    380. 
&  Eq.  91. 


CHAP,    XX.]  RESCINDING    OF   SALES.  309 

5.  In  an  action  for  money  had  and  received,  to  recover  a  dc])o.sit 
for  a  defect  of  title,  it  is  held  that  the  plaintiff  mnst  j)rove  the 
title  had,  not  merely  that  it  has  hcen  deemed  insnfticient  by 
conveyancers  employed  to  advise  upon  it.^     See  ch.  13. 

6.  A  failure  by  the  obligor,  in  a  bond  for  title,  to  perform  the 
condition,  is  no  ground  for  cancelling  the  contract  in  equity.'^  So 
in  case  of  a  contract  to  sell  and  convey,  upon  payment  of  the  pur- 
chase-money, as  the  respective  instalments  became  due,  and,  in 
case  of  failure  to  pay  any  instalment  when  due,  reserving  the 
power  to  ratify  or  revoke  the  contract  at  pleasure ;  the  vendee 
entered  upon  and  improved  the  land,  and  paid  part  of  the  purchase- 
money,  but  failed  to  pay  the  balance  at  the  time  stipulated,  and 
the  seller  rescinded  the  contract,  and  conveyed  the  land  to  another. 
The  vendee  files  a  bill  in  equity  to  recover  the  consideration- 
money,  and  compensation  for  the  improvements,  without  alleging 
fraud  or  insolvency  in  the  vendor,  and  without  asking  other  relief. 
Held,  not  a  case  within  the  jurisdiction  of  equity.^  So  the  condi- 
tions of  sale  represented  that  a  deed,  under  which  A.  claimed  an 
interest  in  the  estate,  was  a  forgery,  that  the  vendor  had  made 
his  affidavit  to  that  effect,  and,  therefore,  that  the  purchaser  should 
not  take  any  objection  to  the  title  by  reason  of  that  deed.  The 
purchaser  afterwards  refused  to  complete  the  purchase,  brought  an 
action  for  his  deposit,  and  obtained  a  verdict,  the  jury  declaring 
the  deed  to  be  genuine.  Held,  in  a  bill  by  the  vendor  for  specific 
performance,  that  at  law  the  purchaser  could  not  rescind  on  the 
ground  that  the  affidavit  turned  out  to  be  untrue,  and,  in  equity, 
that  the  vendor,  in  case  he  could  make  a  good  title  in  other 
respects,  was  entitled  to  a  decree  for  specific  performance,  with 
costs.'* 

.  7.  With  regard  to  misdescription  of  the  land  sold,  as  ground  for 
rescinding  the  sale^  it  has  been  held,  that  a  purchaser  under  a  par- 
ticular, giving  a  false  description,  is  not  bound  at  law  or  in  equity, 
nor  by  any  act  of  his  agent,  without  a  fresh  authority  or  subsequent 
approbation  ;  a  different  agreement  requiring  a  fresh  authority .^(a) 

1  Camfield  v.  Gilbert,  4  Esp.  Ca.  221.  <  Cattell  v.  Corrall,  3  Y.  &  Coll.  413. 

'^  Slioup  V.  Cook,  1  Smith,  29.  5  Deverell  v.  Bolton,  18  Ves.  505. 

^  Notson  V.  Barrett,  1  Iowa,  302. 

(a)  In  Wisconsin,  in  an  action  against  ground,  and  recover  the  money  paid,  with- 

a  purchaser  by  executory  contract  for  the  out  a  previous  surrender  of  tlie  premises  ; 

balance   of  the    purciuxse-money  ;    if  the  and   the  judgment    of  Court  will  be   so 

vendor  has  no  title,  the  defendant  may  in  framed  as  to  protect   the   rights  of  both 

his   answer    claim   a   rescission   on  "that  parties.     Taft  v.  Kessel,  IG  Wis.  273. 


310  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XX. 

And  where  conditions  of  sale  are  so  obscurely  worded,  that,  when 
taken  in  connection  with  the  particular,  they  are  likely  to  mislead 
an  ordinary  purchaser  as  to  the  nature  of  the  property  offered,  it 
seems  the  Court  will  discharge  the  purchaser  in  the  argument  of 
exceptions  to  the  title,  witliont  a  motion  to  be  discharged. ^  So  an 
injunction  does  not  lie,  to  stay  an  action  brought  by  a  purchaser, 
for  his  deposit ;  tlie  description  in  tlie  printed  particular  of  sale 
being  calculated  grossly  to  deceive  as  to  the  real  nature  and  value 
of  the  estate  sold.'-^  So  it  is  held  that  specific  execution  will  not  be 
enforced,  unless  the  parties  have  described  and  identified  the  tract, 
or  unless  the  contract  furnish  the  means  of  certainly  identifying 
it.^  And  where,  by  the  conditions  of  sale,  no  further  evidence  of 
identity  was  to  be  required,  than  what  was  afforded  by  the  abstract, 
and  the  documents  therein  abstracted,  but  the  descriptions  in  the 
documents  differed  amongst  themselves,  and  from  the  descriptions 
in  the  particulars  of  sale ;  held,  the  purchaser  was  entitled  to  have 
further  proof  of  the  identity ."^  So  misdescription  of  the  quantity 
of  land,  in  regard  to  the  acres  being  statute  acres  or  customary,  is 
not  matter  of  compensation,  but  a  ground  for  setting  aside  the 
sale.^ 

8.  On  the  other  hand,  it  has  been  held,  that  agreements  for  sale 
of  an  estate,  especially  if  by  auction,  depend  on  the  hoyia  fides  of 
the  transaction  ;  therefore  trifling  errors  in  the  description  are  not 
material.  So  specific  performance  of  an  agreement  for  the  sale  of 
an  estate  was  decreed,  notwithstanding  a  variance  from  the  descrip- 
tion, witli  compensation  for  the  deficiency  in  value  ;  though  a  minute 
examination  might  have  discovered  the  defects ;  as  in  the  state  of 
the  house  and  the  cultivation  of  the  lands  ;  —  but  not  for  a  variance 
from  the  description  as  lying  within  a  ring-fence,  this  being  an 
object  of  sense,  and  upon  the  evidence  the  purchaser  being  apprised 
of  it.'^  So  specific  performance  was  decreed  against  a  purchaser  at 
auction,  where  the  representation  in  the  particulars  was  so  vague  and 
indefinite,  that  it  ought  to  have  put  the  purchaser  on  inquiry.^  So, 
where  lands  had  been  purchased  under  a  decree  in  a  creditor's  suit, 
the  Court,  on  the  application  of  a  creditor,  who  had  for  four  years 
acquiesced  in  the  purchase,  and  who  was  not   supported   in  his 

1  Taylor  v.  Martindale,  1  You.  «&  Coll.  *  Flower  v.  Hartopp,  6  Beav.  476. 

658.  5  Price  v.  Nortli,  2  You.  &  Coll.  620. 

■^  Stewart  v.  AUiston,  1  Mer.  26.  ^  Dyer  v.  Hargrave,  10  Ves.  506. 

3  Reed's  Heirs  v.  Hornback,  4  J.  J.  "^  Trower  v.  Newcome,  3  Meri.  704. 
Marsh.  375. 


CHAP.    XX.]  RESCINDING    OF   SALES.  311 

objections  by  the  other  creditors,  refused  to  set  aside  tlic  purchase 
on  the  ground  of  misdescription  of  tlic  land  in  the  particulars.^  So 
it  has  been  held,  that  the  generality  and  vagueness  of  descriptions 
of  copyhold  property  on  the  court  rolls  are  so  well  known,  that  a 
vendor  is  not  bound  to  show  how  such  description  is  to  be  applied 
to  the  present  state  of  the  property,  if  he  prove  that  the  property 
has  actually  been  enjoyed  and  passed  under  that  description  for 
upwards  of  sixty  years.^ 

9.  And  even  where  a  judgment  has  been  recovered  at  law  by  the 
vendee,  upon  the  ground  of  misdescription  in  the  deed,  as  compared 
with  the  contract ;  equity  will  sometimes  interfere  for  relief.  Thus 
a  bill  was  sustained,  to  be  relieved  against  a  verdict  and  judgment 
in  ejectment  for  a  farm,  which  the  purchaser  of  the  manor  would 
have  to  be  comprehended  under  general  words  in  the  deed,  but 
which  were  never  mentioned  in  the  particular  given  before  the 
purchase  was  made,  but  enjoyed  by  the  vendor  several  years  after 
the  sale  of  the  manor,^ 

10.  We  have  already  considered  in  previous  chapters  the  right 
of  a  purchaser  to  receive  compensation  in  equity,  for  deficiency  in 
the  land  sold.  It  may  be  added,  in  the  present  connection,  that  a 
condition  in  articles  of  sale,  "  that  any  error  in  the  particulars 
shall  not  vitiate  the  sale,  but  a  compensation  shall  be  made,"  only 
applies  to  cases,  where  tlie  circumstances  afford  a  principle  by  which 
this  compensation  can  be  estimated.  Therefore,  on  the  sale  of  a 
reversion,  expectant  on  the  death  of  A.  B.  ivithont  children,  an  error 
in  the  statement  of  A.  B.'s  age  does  not  come  within  the  condition 
(as  it  would,  if  the  reversion  were  simply  expectant  on  A.  B.'s 
death),  because  it  affects  the  probability  of  the  other  contingency, 
which  is  not  a  subject  of  calculation.  Hence  the  purchaser  is 
entitled  to  rescind.*  So  a  condition,  "  that  if  any  mistake  shall  be 
made  in  the  description,  or  any  other  error  in  the  particulars  of 
the  property,  such  mistake  or  error  shall  not  annul  the  sale,  but  a 
compensation  shall  be  given,  &c.,"  does  not  apply,  where  any  sub- 
stantial part  of  the  property  turns  out  to  have  no  existence,  or 
cannot  be  found  ;  or  where  the  vendor  has  7nald  fide  given  a  very 
exaggerated  description  of  the  property.  The  purchaser  may  in 
such  a  case  rescind  the  contract  in  toto.^     So  the  particulars  of  a 

1  Price  V.  North,  2  You.  &  Coll.  220.  ■*  Slierwood  v.  Kobiiis,  Moody  &  Malk. 

2  Long  V.  Collier,  4  Russ.  267.  194. 

3  Tyler  v.  Bevershani,  Eep.  Temp.  ^  Robinson  i;.  Musgrove,  2  Moo.  &  Rob. 
rinch,  80.  92. 


312  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XX. 

sale  at  auction  described  two  houses  as  Nos.  3  and  4,  and  stated 
that  the  taxes  of  No.  3  were  paid  by  the  tenant.  The  houses  were 
really  Nos.  2  and  3,  though  the  names  of  the  occupiers  were  cor- 
rect ;  and  the  taxes  of  No.  3  were  farmed  by  the  landlord.  The 
houses  Nos.  2  and  4  were  of  the  same  rate  ;  but  No.  4  was  in  the 
better  state  of  repair.  Held,  these  misdescriptions  were  not  cured 
by  a  condition,  that,  if  any  error  or  misstatement  should  be  found 
in  the  particular,  it  should  not  vitiate  the  sale.^  So,  on  a  sale 
under  a  decree,  the  abstract  stated,  that  the  vendor  was  devisee  of 
A.,  who  took  as  heir  to  B.,  and,  on  inquiry,  the  vendor's  solicitor 
confirmed  that  statement ;  and  the  Master  accordingly  approved  of 
the  title.  Just  before  the  conveyance  was  executed,  the  purchaser 
discovered  that  C.  was  the  heir  of  B.,  and  it  appeared  that  the 
solicitor  had  received  information  of  that  fact,  but  concealed  it.  A 
motion  by  the  purchaser,  to  be  discharged  from  liis  purchase,  was 
granted,  though  the  vendor  had  obtained  a  release  from  C.  before 
the  motion  was  made.^  So  the  defendant,  on  the  31st  of  March, 
agreed  to  grant  to  the  plaintiff  a  lease,  habendum  from  the  29th  of 
September  next,  for  twenty-one  years,  in  consideration  of  .£1,000, 
of  which  £10  was  paid  down,  £90  was  to  be  paid  on  the  13th  of 
April,  and  the  residue  on  having  possession.  The  plaintiff,  being 
called  upon  to  pay  the  £90,  demanded  an  abstract  of  title,  which 
was  refused ;  whereupon  he  gave  notice  that  he  would  rescind  the 
contract,  and  commenced  an  action  to  recover  the  £10.  It  ap- 
peared that,  when  the  action  was  commenced,  the  defendant  had 
no  power  to  grant  the  lease  contracted  for.  Judgment  for  plaintiff.'^ 
11.  But,  as  has  been  already  seen,  the  chancellor  will  not 
always  rescind  a  contract,  because  the  vendor  has  not  a  title  to 
the  whole  of  the  land,  but  will  decree  to  the  vendee  compensation 
pro  tanto^(^a)     Thus,  where  a  sale  at  auction  is  bond  fide,  the  title 

1  Leach  v.  MuUett,  3  Car.  &  P.  115.  4  Collard   v.    Groom,  2   J.  J.  Marsh. 

2  Dalby  v.  ruUen,  3  Sim.  2'J.  488;  Reynolds  v.  Vance,  4  Bibb.  215. 

3  Roper  V.  Coombes,  6  Barn.  &,  Cress. 
534. 

(a)  The  cases  upon  this  subject,  how-  for  damages  for  the   whole.     Rankin   v. 

ever,  are  not  uniform,  but  vary  with  the  Maxwell,  2  A.  K.  Marsii.  494.     So,  where 

particular   circumstances  and  equities  of  there  was   an    outstanding    title    to   five 

each.     Thus  it  is  held,  that  a  party  ap-  hundred  and  seventy  acres  of  the   land 

Inlying  for   specific   execution  of  a  land  purcliased,  the  owners  of  which  obtained 

contract  will  not  be  compelled  to  take  lost  possession  after  the  purchase  ;  held,  equity 

land  ;  but,  if  part  of  the  land  described  be  would  decree  a  rescission  of  the  contract, 

lost,  he  has  tiie  election,  to  take  the  safe  after  judgment  on  the  notes  given  to  se- 

part,  and  go  for  damages  as  to  the  other,  cure   the    purchase-money.      Parham   v. 

or  he  may  refuse  the  land  saved,  and  go  Randolph,  4  How.  (Miss.)  435. 


CHAP.    XX.]  RESCINDING    OF   SALES.  313 

good,  the  quantity  of  laud  the  same,  aud  the  description  suhstaii- 
tially  true,  though  slightly  defective  or  variant,  specific  perform- 
ance will  be  decreed.  As  where  two  adjoining  lots  were  sold 
together,  in  one  parcel,  for  one  price,  and  on  one  of  them  were 
buildings  which  projected  two  feet  on  the  other.  Held,  this  was 
not  so  material  a  defect  in  the  subject,  or  variation  from  the 
description  at  the  sale,  as  would  entitle  the  purchaser  to  abandon 
the  contract.  But,  as  the  projection  was  not  so  obviously  visible 
as  to  conclude  the  purchaser,  if  he  had  exercised  ordinary  vigilance  ; 
and  as  tlic  advertisement  described  the  buildings  as  being  on  one 
of  the  lots ;  the  purchaser  was  entitled  to  compensation,  to  Ije 
deducted  from  the  price. ^  So,  a  bond  being  given,  to  make  title  to 
a  particular  tract  of  land,  which  should  contain  a  certain  number 
of  acres,  but  not  to  convey  any  other  specific  lands  to  make  good  a 
deficiency ;  the  only  remedy  for  such  deficiency  is  a  proportional 
compensation  in  money  according  to  the  price  agreed  on  for  the 
whole  tract,  with  interest.  And  where  a  plaintitf  sues  in  chan- 
cery, for  conveyance  of  a  specific  tract,  and  also  of  other  lands,  to 
make  up  a  deficiency  of  quantity  (relating  to  which  deficiency  he 
prays  a  discovery),  but,  according  to  the  contract,  appears  entitled 
to  compensation  in  money,  and  not  in  lands ;  the  Court,  after 
decreeing  the  first-mentioned  conveyance  (the  deficiency,  and  the 
sum  to  be  allowed  for  it,  being  ascertained),  will  go  on  to  decree 
the  compensation.^  So  want  of  title  to  fifty  acres,  part  of  a  tract 
of  eight  hundred  and  odd  acres,  not  appearing  to  be  important  to 
the  purchaser,  is  no  ground  for  a  rescission,  but  for  compensa- 
tion.^ So  the  sale,  by  auction,  of  a  lot  described  as  a  certain  and 
limited  body  of  a  given  extent,  cannot  be  rescinded,  for  a  deficiency 
in  measure  of  less  than  one-twentieth  of  the  whole."*  So  a  trustee, 
api^ointed  by  the  Court  of  Chancery,  sold  an  entire  tract  of  land,  at 
a  certain  price  per  acre,  and  the  sale  was  ratified.  At  the  time  of 
sale,  it  was  known  to  the  trustee  and  the  purchaser,  that  a  bill  was 
pending  for  the  recovery  of  an  interest  in  such  land,  in  opposition 
to  the  cestuis  que  trust.  On  that  bill,  it  was  finally  decreed,  that 
the  complainants  were  entitled  to  one-fourth  of  the  property. 
After  this  decision,  the  purchaser  filed  a  petition  in  chancery,  set- 
ting it  forth,  and  claiming  to  vacate  the  sale,  on  the  ground  that 

1  King  V.  Bardeau,  6  Jolins.  Ch.  38.  *  Soule  v.  Ileerman,  5  JNIiller  (Louis.) 

2  Chinn  v.  Heale,  1  iMuiif.  63.  358. 

3  Buck  V.  M'Caughtry,  5  Monr.  230. 


314  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    XX. 

he  was  induced  to  make  the  purchase,  because  of  its  proximity  to 
his  own  estate,  and  an  important  road,  leading  from  his  estate 
through  the  purchased  premises,  and  connecting  them  together. 
But,  the  existence  of  the  road  not  being  proved,  the  sale  being 
made  in  perfect  good  faith,  and  it  appearing  that  the  quantity  of 
land  to  be  obtained  from  the  trustee  was  not  a  material  considera- 
tion in  the  purchase  ;  that  the  trustee  could  make  a  good  title 
under  the  decree  to  three-fourths  of  the  land  ;  that  the  petitioner 
had  secured  to  himself  three-fourths  of  the  remaining  fourth  part ; 
and  that  the  trustee  was  placed  in  a  situation,  by  a  deed  from  the 
party  having  the  right,  to  give  a  title  to  the  other  fourth  of  that 
part,  which,  if  the  petitioner  chose  to  accept  it,  would  secure  to 
him  the  entire  object  of  the  purchase,  without  loss  :  held,  that  he 
could  not  be  discharged  from  his  contract,  when  the  enforcement 
of  it,  subject  to  a  proportionate  deduction  for  that  which  he  had 
purchased  from  others,  would  do  him  no  injury. ^  And  in  general 
it  may  be  stated,  that,  on  a  bill  for  specific  performance,  if  the 
vendor  be  not  able  to  make  a  conveyance  of  the  entire  estate  sold, 
the  purchaser  may  insist  for  the  specific  thing,  so  far  as  the  right 
of  the  vendor  extends,  and  compensation  out  of  the  purchase-money 
for  any  embarrassment  of  the  title,  or  deficiency  in  the  number  of 
acres  sold  ;  ^  that,  although  a  purchase  of  lands  cannot  be  dissolved 
in  part  and  affirmed  in  part,  yet,  if  part  of  the  land  is  lost,  the 
vendee  may  coerce  a  title  for  the  part  saved,  and  compensation 
for  the  part  lost ;  ^  and  that,  where  a  sale  has  been  in  part  executed 
by  a  conveyance  of  part  of  the  land,  and  the  vendor  is  unable  to 
convey  the  residue,  equity  will  decree  repayment  of  a  proportionate 
part  of  the  purchase-money  with  interest.* 

12.  Rescission  of  tlie  contract  may  be  j^resmned  or  implied;  as, 
for  instance,  from  lapse  of  time.  Tlius  an  action  was  brought  on  a 
written  agreement,  reciting  that,  whereas  the  defendant  had  sold 
to  the  plaintiff  a  lot  of  land,  who  had  agreed  to  pay  him  £300  by 
a  certain  day,  and  to  execute  a  bond  and  mortgage  to  secure  the 
payment ;  the  defendant  therefore  promised  and  agreed  to  deliver 
a  good  and  sufficient  deed  for  the  land,  on  delivery  of  the  bond  and 
mortgage.     Held,  being  a  mutual  agreement,  there  was  a  valid 

1  Weems  v.  Brewer,  2  Harr.  &  Gill,  64 ;  Westervelt  v.  Matlieson,  1  Hoffm. 
390.  Ch.  37. 

'■i  McKay  v.    Carrington,   1    McLean,         ^  gtep  v.  Alkire,  2  A.  K.  Marsh.  259. 

*  Pratt  V.  Law,  9  Cranch,  458. 


CHAP.    XX.]  RESCINDING    OF   SALES.  315 

consideration  ;  and,  being  signed  l)y  the  party  to  be  charged,  it  was 
suflficient  under  the  Statute  of  Frauds  :  but,  four  years  having 
elapsed  from  the  date  of  the  agreement,  before  the  plaintiff  gave 
notice  to  the  defendant  that  he  should  insist  on  the  agreement,  and 
five  years  before  he  tendered  a  performance  on  his  part ;  it  was 
presumed  that  the  parties  had  rescinded  the  contract,  altliough  the 
defendant  had,  within  a  year  after  the  contract,  sold  and  conveyed 
the  land,  so  as  to  incapacitate  himself  to  perform  his  agreement.^ 
So  the  defendant  gave  the  i)laintiff  a  note,  i)ayable  on  time,  with 
interest  annually,  the  plaintiff  agreeing  in  writing,  upon  payment 
at  maturity,  to  convey  certain  premises  to  the  defendant.  Tiie 
defendant  took  possession  under  a  lease,  agreeing  to  pay  a  certain 
rent,  if  the  note  were  not  paid  at  maturity,  and  remained  in  pos- 
session. The  note  was  not  thus  paid.  The  plaintiff  resumed 
possession,  but  the  defendant  -continued  to  occupy  under  a  lease. 
Held,  this  was  a  disaffirmance  of  the  contract  by  the  plaintiff,  and 
equivalent  to  payment  of  the  note  ;  upon  which  no  suit  would 
afterwards  lie.^ 

13.  On  the  other  hand,  the  right  to  rescind  may  be  ivaived. 

14.  Waiver  is  generally  connected  with  the  lapse  of  time,{a')  which 
may  affect  the  rights  of  either  vendor  or  vendee.  Thus  a  condi- 
tion of  sale  provided,  that  if  the  purchaser  should  raise  objections 
to  the  title,  which  the  vendor  should  not  be  able  or  willing  to 
remove,  the  vendor  might  rescind,  and  that  all  objections  not  taken 
in  writing,  within  ten  days  after  delivery  of  the  abstract,  should 
be  considered  as  waived.  Held,  the  condition  referred  to  the  lirst 
delivery  of  objections  ;  and,  if  the  vendor  expressed  his  willingness 
to  answer  them,  he  could  never  afterwards  rescind.^  So  where  a 
right  of  forfeiture  is  reserved  by  a  vendor,  on  the  failure  of  the 
vendee  for  six  months  to  enter  and  improve,  and  the  vendee,  after 
several  years,  takes  possession,  and  makes  improvements ;  the 
right  of  forfeiture  cannot  be  subsequently  asserted. *  But,  on  the 
other  hand,  a  party  entering  upon,  holding,  and  enjoying  land  by 
virtue  of  a  contract,  if  he  desires  to  rescind  the  contract  for  fraud, 
must  act  promptly,  and  give  prompt  notice  of  his  intention.  He 
cannot  lie  by,  and  enjoy  the  benefits  of  the  contract,  knowing  all 
the  time  the  existence  of  the  fraud,  and  then  take  advantage  of 

1  Ballard  v.  Walker,  8  .Johns.  Cas.  64.  »  Tanner  v.  Smith,  10  Sim.  410. 

2  Porter  v.  Vaughn,  26  Verm.  624.  *  Wilson  v.  Guthrie,  2  Grant,  111. 

(«)  See  ch.  11. 


316 


LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    XX. 


it,  when  the  other  party  seeks  enforcement  of  the  contract. ^  And, 
in  general,  a  vendee  must  restore  possession  promptly,  before  claim 
to  rescind  and  recover  the  price.^  So  a  purchaser  under  a  verbal 
contract  cannot  recover  back  the  price,  after  he  has  enjoyed  pos- 
session for  many  years,  unless  he  can  show  a  rescission  ;  and  the 
burden  is  on  him  to  show  it.^  And  if  a  purchaser  pay  part  of  the 
purchase-money,  and  occupy  some  time  under  the  contract,  he 
cannot,  on  the  vendor's  breach  of  his  agreement  to  convey,  rescind 
the  contract,  and  recover  back  the  money  in  indebitatus  assumpsit : 
his  only  remedy  is  on  the  special  contract.*(a) 

15.  The  right  to  rescind  a  written  agreement  may  not  apply 
to  a  subsequent  parol  agreement,  by  which  the  former  has  been 
waived.  Thus  an  agreement  was  entered  into  by  A.,  for  the  sale 
of  an  estate  to  B.,  to  be  completed,  and  the  purchase-money  paid, 
on  or  before  the  expiration  of  five  years  ;  in  the  mean  time,  inter- 
est to  be  paid  half-yearly ;  the  vendor  reserving  a  right  to  avoid 
the  contract,  if  the  interest  should  be  in  arrear  for  twenty-one 


1  Fratt  V.  Fiske,  17  Cal.  380.  See 
Schroeppel  v.  Hopper,  40  Barb.  425;  Lewis 
V.  M'Millen,  41  Barb.  420. 

'i  Goelth  V.  White,  35  Barb.  76  ;  Tomp- 
kins V.  Hyatt,  28  N.Y.  (1  Tiffa.)  347. 


21. 


3  Donaldson  v.  Waters,  35  Ala.  107. 

4  Barickman  v.  Kuykendall,  6  Blackf. 


(a)  A  purchaser,  refusing  to  complete 
the  sale,  cannot  recover  a  portion  of  the 
price  paid  to  the  vendor,  who  is  willing 
to  complete  it. 

The  avoiding  of  a  sale  by  a  Court  of 
Equity,  on  application  of  the  vendor,  for 
default  of  payment  of  a  balance  of  the 
price,  is  an  affimmnce,  not  a  rescission,  of 
the  contract,  and  does  not  give  the  vendee 
a  right  to  recover  the  amount  which  he 
has  paid.  Hansbrough  v.  Peck,  Law  Reg. 
Dec.  1867,  p.  74,  U.  S.  Sup.  Ct. 

Where  a  verbal  promise  is  substan- 
tiall}^  the  same  as  a  2)revious  written  one, 
and  nothing  done  under  it  which  the 
written  contract  did  not  also  require,  nor 
any  new  consideration  ;  its  existence  and 
enforcement  cannot  be  set  up  as  a  rescis- 
sion of  the  written  contract.  As  where 
a  purchaser,  having  made  a  imrt-payment, 
intended  to  abandon  the  contract,  and  the 
vendor  promised  a  certain  extension  if 
he  would  pay  the  balance  ;  no  further 
payments  were  made,  and  the  vendor 
filed  a  bill  in  equity  to  prevent  the  remo- 
val, and  obtain  possession,  of  the  buildings 
erected  by  the  vendee,  and  a  decree  was 
entered  to  that  etfect,  and  the  vendor  put 
in  possession.  Tlie  vendee  then  files  the 
present  bill  to  recover  back  the  payments 


and  the  value  of  the  improvements,  upon 
the  ground  that  the  vendor  had  rescinded 
the  contract.  Pleld,  the  bill  could  not  be 
maintained.     Ibid. 

By  written  agreement  between  H.  and 
C,  H.  was  to  sell  land  and  loan  money 
to  C,  who  was  to  erect  a  building  upon 
the  land  on  or  before  a  specified  day,  and 
to  purchase  the  premises,  and  to  pay  the 
price  and  the  advances  with  interest,  on 
or  before  a  time  agreed.  In  the  event  of 
C.'s  failure  to  finish  the  house  at  the  time, 
or  of  his  suspension  of  the  work  for  ten 
days,  H.,  after  giving  ten  days'  notice  in 
writing,  might  sell  the  property  at  public 
or  private  sale,  and  apply  the  proceeds  to 
pay  the  expenses,  and  the  amount  due  to 
himself  on  account  of  them.  C.  partially 
completed  the  building,  and  then  aban- 
doned it,  and  H.  sold  the  property.  Held, 
C.  was  not  entitled  to  a  judgment,  allow- 
ing him  to  proceed  with  and  finish  the 
house  ;  nor  for  the  difference  between  the 
value  of  the  work  and  material  furnished, 
and  the  amount  of  the  advances ;  and  that 
the  damages  to  the  house  by  its  exposure 
in  an  unfinished  state  to  the  weather  must 
be  borne  by  C.  Chase  v.  Hogan,  6  Bosw. 
431. 


CHAP.    XX.]  RESCINDING    OF   SALES.  317 

days.  To  enable  B.  to  pay  the  interest  then  in  arrcar,  C.  advanced 
a  sum  of  money  on  mortgage  of  B.'s  interest,  and  A.  afterwards 
verbally  agreed  with  C.  to  extend  the  term  for  the  payment  of  the 
half-yearly  interest.  The  interest  became  afterwards  in  arrear,  in 
such  a  way  that  A.,  by  the  original  agreement,  had  a  riglit  to 
annul  the  contract ;  but  he  had  no  such  right  under  the  varied 
agreement.  A.  re-entered  as  for  a  forfeiture.  The  Court,  on  the 
application  of  C,  appointed  a  receiver  over  the  ])roperty.^ 

16.  Various  points  have  been  decided,  as  to  what  will  constitute 
an  effectual  rescission  by  vendor  or  vendee.  This  is  matter  of 
law,  not  of  fact.^ 

16  a.  Where  the  vendee  enters,  and,  on  default  of  payment,  is 
served  with  a  summons  in  ejectment  by  the  vendor,  he  forfeits  his 
right  to  a  conveyance,  unless  payment  be  promptly  tendered,  and 
performance  of  the  contract  claimed ;  and  recovery  in  ejectment  is 
a  bar  to  specific  performance  of  the  contract.^ 

16  h.  One  party,  who  would  rescind  a  contract  on  account  of  the 
other's  failure  to  comply  with  the  conditions,  must  be  in  no  default 
himself;  and  both  must  be  placed  as  they  were  when  the  contract 
was  made.  Thus  one  in  possession,  under  articles,  must,  in  order 
to  rescind,  give  up  his  possession  ;  and,  where  payment  of  the 
purchase-money  is  a  covenant  precedent  to  the  conveyance,  he 
must  show  an  offer  to  pay.*  So,  before  the  price  paid  can  be 
recovered  back  on  the  ground  of  rescission,  the  property  must 
be  restored,  or  tendered  in  its  original  condition  ;  and  the  lien 
upon  the  land  of  a  judgment  against  the  vendee  must  be  removed.^ 
So  a  vendee  who  has  paid  the  price  under  an  agreement  for  a  con- 
veyance, where  time  is  not  of  the  essence  of  the  contract,  and 
where  the  vendor  has  not  been  guilty  of  fraud,  nor  refused  to 
perform  his  part  of  the  contract,  cannot  rescind  and  recover  back 
the  consideration-money,  without  having  first  demanded  perform- 
ance, and  given  an  opportunity  for  the  vendor  to  comply  with  the 
demand.  The  commencement  of  a  suit  to  recover  the  purchase- 
money  is  not  a  sufficient  demand.^ 

16  c.  The  recovery  of  the  land  with  mesne  profits  by  the  vendor 
is  not  necessarily  a  rescission  ;  for  non  constat  that  the  vendee  was 
entitled  to  the  possession  by  the  terms  of  the  contract,  and  there- 

1  Dawson  v.  Yates,  1  Beav.  301.  *  Piper  v.  Slonoker,  2  Grant,  113. 

2  Dula  V.  Cowles,  7  Jones,  2'JO.  5  Gelir  v.  Ilaj^erman,  'iH  111.  438. 

3  Tibbs  V.  Morris,  44  Barb.  138.  6  Walters  v.  MiUer,  lU  Iowa,  427. 


318  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XX. 

fore  the  burden  is  on  him  to  show  that  the  recovery  was  incon- 
sistent with  those  terms.^ 

16  d.  A  written  contract  was  entered  into  for  the  purchase  and 
sale  of  land,  on  which  the  purchaser  had  made  a  part-payment  of 
$4,000,  and  had  been  put  in  possession.  Subsequently,  the  parties 
indorsed  upon  the  contract  the  following  :  "  For  value  received, 
we  hereby  cancel  "  the  within  agreement,  mutually  disciiarging 
eacli  otlier  from  all  covenants,  &c.,  therein,  and  the  "  purchaser 
hereby  surrenders  possession,"  &c.,  whicli  surrender  was  actually 
made.  Held,  no  sucli  rescission  as  to  entitle  the  purchaser  to 
recover  back  his  |4,000.2 

16  e.  An  agreement  to  sell  provided  that  the  vendee  should  go 
into  possession  at  once,  and,  upon  any  default  in  payment,  should 
become  a  mere  tenant  at  will.  Held,  a  mere  default,  without  some 
act  indicating  an  intention  to  insist  on  the  forfeiture,  did  not  work 
a  forfeiture,  and  make  the  vendees  tenants  at  will.^ 

16/.  The  fact,  that  a  purchaser  left  the  State  before  fulfilment 
of  tlie  contract,  was  held  to  be  no  abandonment  of  the  contract, 
and  no  defence  to  a  suit  for  specific  performance.* 

IGg.  Where  it  is  provided  that  tlie  vendor  may  declare  a  for- 
feiture of  the  contract  on  non-payment  of  the  price,  the  vendee 
retains  an  equitable  title  till  sucli  declaration.  So  in  case  of  an 
agreement  to  convey,  which  may  be  forfeited  at  the  election  of  tlie 
vendor,  the  vendee's  interest  being  sold  on  execution,  if  the  ven- 
dor sues  him  for  the  price,  the  execution  purchaser  may  tender 
the  amount  of  the  judgment,  and  claim  a  deed ;  ^  and,  to  rescind 
a  contract,  the  law  requires  some  positive  act  showing  such  inten- 
tion, and  putting  the  opposite  party  on  his  guard,  so  as  to  give 
him  a  reasonable  time  to  comply.  Thus  where  the  complainant 
agreed  to  buy  land  of  the  defendant,  gave  him  his  negotiable 
promissory  note,  and  took  from  him  a  bond  for  a  deed,  to  be  made 
upon  payment  of  the  note,  and  each  party  then  remained  inactive 
for  two  years  ;  held,  the  complainant  might  then  still  enforce  his 
contract.^  To  obtain  a  rescission,  it  is  not  necessary  to  pay  the 
whole  of  the  purchase-money.  Thus  where  negotiable  notes  have 
been  given,  and  are  outstanding,  chancery  will  interpose.'^ 


1  Donaldson  v.  Waters,  85  Ala.  107.  ^  Twogood  v.  Stephens,  19  Iowa,  406. 

2  Winton  v.  Spring,  18  Cal.  451.  «  MuUin  v.  Bloomer,  11  Iowa,  360. 
Moore  v.  Smith,  24  III.  512.  ^  McKay  v.  Carrington,  1  McL.  50. 
Creamer  v.  Ogden,  16  Ind.  176. 


CHAP.    XX.]  RESCINDING    OF   SALES.  319 

17.  Purchase  of  land  in  Ohio,  from  a  vendor  in  Virginia,  to  be 
paid  for  by  instahncnts.  On  the  ftiihirc  of  any  of  the  payments, 
the  vendor,  by  giving  notice,  and  })aying  into  the  Bank  of  Virginia, 
his  heirs,  executors,  or  administrators,  to  have  a  right  to  annul 
the  contract.  Held,  the  contract,  except  by  consent,  could  be 
annulled  in  no  other  manner.^ 

18.  By  conditions  of  sale,  all  objections  to  the  title  were  to  be 
taken  away  within  twenty-eight  days  from  the  delivery  of  the 
abstract ;  and,  if  not  removed  within  fourteen  days,  the  vendor 
might  annul  the  contract,  on  payment  of  the  deposit,  but  without 
costs.  The  purchaser  having  made  a  valid  objection,  which  was 
not  removed,  the  vendor  gave  notice  to  annul  the  contract.  Held, 
the  vendor  might  avail  himself  of  the  condition  ;  otherwise  if,  in 
giving  the  notice,  he  had  sought  improperly  to  escape  from  the 
performance  of  a  duty,  which,  by  the  nature  of  the  contract,  he 
was  bound  to  perform.^ 

19.  A  proviso,  that  in  case  the  vendor  cannot  produce  a  title,  or 
the  purchaser  shall  not  pay  the  money,  on  the  appointed  day,  the 
agreement  shall  be  utterly  void,  gives  an  option  to  the  vendor  to 
rescind  the  sale,  in  case  the  vendee  does  not  pay  the  money,  and 
to  the  purchaser  to  rescind,  in  case  the  vendor  does  not  make  a 
title  ;  but  not  vice  versd.^ 

20.  It  is  the  prevailing  doctrine,  that,  if  the  purchaser  has  paid 
any  part  of  the  purchase-money,  and  the  seller  refuses  to  complete 
the  contract,  the  purchaser  may  elect  either  to  affirm  the  contract 
by  bringing  an  action  for  its  non-performance,  or  disaffirm  it  by 
an  action  for  money  had  and  received.  The  latter  remedy  lies,  if 
there  be  a  defect  in  the  title  which  the  vendor  fraudulently  sup- 
presses, and  receives  a  part  of  the  purchase-money .^(a) 

21.  In  an  action  for  the  general  breach  of  an  agreement  respect- 
ing the  purchase  of  a  house,  the  declaration  need  not  state  a 
collateral  representation  made  at  the  time  of  sale,  as  that  the 
house  was  in  repair,  &c.^ 

^  Ibid.  '♦Lyon  v.  Annable,  4  Conn.  350;  Put- 

2  Page  V.  Adam,  4  Beav.  269.  nam  v.  Westcott,  V^  Johns.  73. 

3  Roberts  v.  Wyatt,  2  Taunt.  2G8.  5  Thomson  v.  Miles,  1  Esp.  Ca.  184. 

(a)  Contrary  to  this  rule,  it  has  been  scind,  and   sue   for  the   purchase-money 

held  in  New  York,  that  where,  on  a  con-  and  interest,  but  must  bring  his  action  on 

tract  to  pay  for  and  receive  a  conveyance  the  contract  as  still  subsisting.     Puller  v. 

of  land,  the  money  has  been  paid,  but  no  Hubbard,  6  Cowen,  13. 
conveyance  given,  the  vendee  cannot  re- 


320  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.   XX. 

22.  Where  a  contract  is  entered  into  for  the  purchase  of  an 
estate,  by  certain  persons  in  tlieir  own  names,  but,  in  fact,  on  their 
own  account,  and  also  as  agents  for  others,  a  bill  to  rescind  the 
contract  may  be  filed  in  the  names  of  all  the  parties.^ 

23.  Thus,  where  partners  are  numerous,  a  bill  may  be  filed  by 
some  of  them,  on  behalf  of  themselves  and  the  others,  to  rescind 
the  contract,  if  manifestly  for  the  benefit  of  all.^ 

24.  A  vendor  cannot  recover  the  price,  after  electing  to  treat 
the  contract  as  void,  and  giving  the  vendee  notice  to  quit.^ 

25.  Where  a  vendor,  after  receiving  notes  for  the  price,  takes 
from  the  vendee  a  release  of  his  interest  under  the  contract,  the 
contract  is  rescinded,  and  the  vendor  cannot  maintain  an  action 
on  such  notes.  And  where  the  vendor  indorsed  the  notes  to  a 
bank,  at  the  same  time  giving  a  deed  of  his  interest  in  the  land, 
and  the  bank  subsequently  took  from  the  vendee  a  release  of  his 
interest  in  the  land  without  the  knowledge  of  the  vendor  ;  held, 
the  contract  was  thereby  rescinded,  and  the  vendor  discharged 
from  liability  as  indorser,  at  least  to  the  extent  of  the  value  of  the 
land.4 

25  a.  When  an  agreement  is  made  to  rescind  a  bond  for  the 
conveyance  of  real  estate,  and  surrender  notes  given  in  payment, 
a  promise  cannot  be  implied  to  refund  whatever  has  been  received 
under  the  contract  to  convey.^ 

25  5.  In  an  amicable  suit  to  rescind,  an  allowance  should  be 
made  the  vendee  for  all  substantial  improvements  and  repairs.^ 

26.  If  the  vendee  has  had  possession,  he  must  account  for  the 
profits  exceeding  the  improvements.'''  He  has  a  lien  on  the  land 
for  his  purchase-money  and  interest,  and  the  value  of  the  improve- 
ments, and  is  liable  to  rents,  &c.  ;  but  both  interest  and  rents 
should  run  only  from  the  date  of  the  prayer  to  dissolve  the  con- 
tract.^ So  when  a  sale  of  land,  which  the  purchaser  has  paid  for, 
and  was  put  in  possession  of,  is  rescinded  for  causes  free  of  fraud, 
the  use  of  the  money,  and  the  use  of  the  land,  are  held  to  balance 
each  other  ;  and  the  decree  should,  in  general,  restore  the  money 
to  the  purchaser  without  interest,  the  land  to  the  vendor  without 

1  Small  V.  Attwood,  You.  407.  6  Patrick  v.  Roach,  21  Tex.  251. 

■^  Small  V.  Attwood,  You.  407 ;  3  Y.  &         7  Bullock  v.  Beemiss,  1  A.  K.  Marsh. 

Coll.  105.  434  ;  Jones  v.  Hutcliinson,  21  Tex.  370. 

3  Goodspeed  v.  Dean,  12  Mich.  352.  «  Griffith  v.  Depew,   3  A.  K.  Marsh. 

4  Ives  V.  Bank,  &c.,  12  Mich.  361.  180. 
^  Nason  v.  Woodward,  16  Iowa,  216. 


CHAP.    XX.]  RESCINDING    OP   SALES.  321 

rents  or  profits.  But,  if  the  purcliaser  has  made  valuable  and  last- 
ing improvements,  or  if  the  land  has  suffered  in  his  hands  through 
neglect  or  mismanagement,  these  are  subjects  of  valuation,  account, 
and  final  settlement  by  the  decree.^ 

27.  But  it  has  been  held,  that  the  vendee  cannot  maintain  a 
distinct  action  at  law  for  the  improvements.  Thus,  the  plaintiff's 
intestate  entered  into  a  parol  agreement,  in  180-3,  with  the  defend- 
ant, for  the  purchase  of  100  acres  of  land  ;  took  possession,  paid 
part  of  the  purchase-money,  cleared  part  of  the  land,  made  improve- 
ments, and  died  in  1807.  The  plaintiff,  his  administrator,  tendered 
the  residue  of  the  purchase-money,  and  demanded  a  deed  ;  but  the 
defendant  refused  to  receive  the  money  or  execute  a  deed,  and 
took  possession  of  the  land.  The  plaintiff  then  brings  assumjysit 
for  the  money  paid,  and  also  for  the  work  and  labor  performed, 
and  improvements  made,  on  the  land,  by  the  intestate.  Held,  the 
contract  was  rescinded,  and  the  plaintiff  was  entitled  to  recover 
back  the  money,  but  not  for  the  labor  or  improvements.^ 

1  Williams  v.  Rogers,  2  Dana,  375.  2  Gillett  v.  Maynard,  5  Johns.  85. 


21 


322  LAW  OP  VENDORS  AND  PURCHASERS.    [CHAP.  XXI. 


CHAPTER    XXI. 


GROUNDS    OF   AVOIDING   A   SALE.  —  MISTAKE. 

1.  General  remarks.  10.     Title  to  j^'^^i  of  the  property  sold; 

3.  Mistake,  what.  when  suthcient. 

4.  Irjnorance  or  mistake  of  law  and  fact.  11.     Compensation. 

5.  Equitable  relief  in   case  of  mistake;  14.     Rescission  of  the  sale. 

mode  and  extent  of.  17.  Rights  of  the  vendor  in  case  of  mis- 

7.      Compensation  or  rescinding  in  case  of  take, 

mistake;  ^'waw^iVj/ of  land  sold  and  conveyed ;  21.  Waiver. 

sale  in  gross,  or  by  boundaries;  more  or  less,  23.  ite/();'w^?^^  of  agreements. 

&c.  28.  Parol  evidence. 

1.  Having  in  the  foregoing  chapters  considered  the  subjects  of 
title  to  the  property  sold,  and  of  the  right  to  rescind  the  sale  for 
want  of  title  ;  we  now  proceed  to  a  general  statement  of  the 
grounds,  upon  which  a  sale  of  real  property  may  be  avoided, 
whether  connected  with,  or  wholly  independent  of,  the  question  of 
title.  The  subject  is  of  course  an  extensive  one,  and  involves 
many  subordinate  topics,  some  of  which  have  little  in  common, 
except  that  they  alike  constitute  causes  which  render  a  sale 
wholly  or  partially  void  or  voidable. 

2.  The  failure  of  title,  in  whole  or  in  part,  which  has  already 
been  considered  with  reference  to  its  bearing  upon  the  contract, 
is  to  be  understood  as  unaccompanied  with  deceit,  fraud,  or  inten- 
tional misrepresentation.  In  the  view  now  to  be  taken,  these  will 
be  found  essential  elements  of  the  defective  title  ;  consisting  either 
in  positive  falsehood,  negative  concealment,  or  that  kind  of  implied 
fraud  which  grows  out  of  the  personal  incapacity  of  a  contracting 
party.  There  is,  however,  one  among  this  class  of  causes  for 
avoiding  the  contract,  which  is  more  nearly  connected  than  the 
others  with  simple  defects  of  title ;  and  therefore,  in  the  natural 
succession  of  subjects,  should  be  first  of  all  considered.  We  refer 
to  mistake.  In  the  absence  of  fraud,  this  of  course  is  the  only 
remaining  explanation  of  want  of  title,  and  it  has  therefore  been 
already  incidentally  considered  in  the  foregoing  chapters.  It  was 
also  briefly  adverted  to  in  the  introductory  chapter  upon  the  distinc- 
tion between  executed  and  executory  contracts  (ch.  1,  §  12).    But 


CHAP.    XXI.]  MISTAKE.  323 

as  a  distinct  ground  for  avoiding  or  varying  the  contract,  resisting 
specific  performance,  or  claiming  compensation  in  damages,  it  now 
remains  to  be  fully  considered.  It  will  at  once  be  seen  that,  with 
reference  to  this  particular  topic,  it  becomes  necessary  to  depart 
from  the  prevailing  plan  of  the  present  work,  and  to  speak  of  exe- 
cuted conveyances  of  real  property,  no  less  than  of  executory  con- 
tracts to  convey  it ;  because  the  most  frequent  class  of  tiiistakes 
consists  in  a  variance  between  the  property  conveyed  and  that 
contracted  for ;  and  the  reforming  of  deeds  is  one  of  the  most 
common  exercises  of  the  powers  of  a  Court  of  Equity  in  relation 
to  this  extensive  subject. 

3.  Mistake  is  defined,^ as  "an  error  committed  in  relation  to 
some  matter  of  fact  affecting  the  rights  of  one  of  the  parties  to  a 
contract."  ^  It  is  also  said,  "  mistakes  in  making  a  contract  are 
distinguished  ordinarily  into,  first,  mistakes  as  to  the  motive ; 
secondly,  mistakes  as  to  the  person  with  whom  the  contract  is 
made  ;  thirdly,  as  to  the  subject-matter  of  the  contract ;  and  lastly, 
mistakes  of  fact  and  of  law."  ^ 

4.  Ignorance  of  title,  or,  which  amounts  to  the  same  thing,  mis- 
take of  title, (a)  is  said  to  be  partly  of  latv  and  partly  of  fact^^(h') 
Viewed,  respectively,  in  these  different  aspects,  it  has  been  in 
some  cases  held  a  sufficient,  and  in  others  an  insufficient  ground 
for  avoiding  a  sale  or  purchase  of  real  property.  The  prevailing 
doctrine  of  our  law  is,  that  ignorance  of  law  can  never  be  set  up  as 
a  ground  of  action  or  defence ;  "  ignorantia  legis  neminem  ezcu- 
sat.''\c)    Hence  a  mistake,  as  to  the  rights  growing  out  of  a  known 

1  2  Bouv.  L.D.  178.     See  Kennedy  v.  2  ibid. 

Panama,  &c.  Law  Rep.  Eng.  1867,  Sep-  3  i  gtory  Eq.  132,  §  120. 

teniber,  &c.,  p.  587. 

(a)  As  to  the  distinction  between  these  (b)  Tiie  question  of  lieirsliip,  for   in- 

ternis,  see  Story  on  Equity,  §  140,  n.  2 ;  stance,  has  been  iield  to  partake  of  botli 

Story  on  Sales,  §  157 ;  Champlin  v.  Lay-  elements.     Story,  §  122,  n.     See  Gould  v. 

tin,   18   Wend.  407.      Surprise  is  also   a  Gould,  5  Met.  274. 

terra  of  similar  import.     Thus  it  is  held,  (c)  In    Landsdowne    v.    Landsdowne, 

that  a  party  shall  not  be  entitled  to  spe-  Mosel.  304 ;  2  Jac.  &  W.  205 ;  Lord  King 

cific  performance,  in  case  of  any  surprise,  remarked,  that  this  ma.xim  a]iplies  only 

making  it  not  fiiir  and  honest  to  call  for  to  crimes,  not  in  civil  cases.     The  facts  of 

it,  but  will  be  left  to  law.     Mortlock  v.  that  case  were  these :  The  plaintiff,  who 

BuUer,   10  Ves.  292.      So  a  lease,  with  was    heir-at-law    and   son    of  the    eldest 

covenant  for  perpetual  renewal  at  a  fixed  brother,  had  a  controversy  with  his  micle, 

rent,  of   premises  held  under  a   church  the  youngest  brother,  as  to  the  (juestion 

lease,  renewable  upon  fines,  which  wore  whicii    was    heir    to     another    deceased 

continually  increasing,  was  decreed  to  be  brotiier  of  his  uncle.     They  consulted  a 

delivered  up  on  tiie  ground  of  suri)rise,  neighboring     schoolmaster,     who,     upon 

neither  party  understanding  the  .etiect  of  examining    the    Clerk's    Remembrancer, 

it.     Willan  v.  Willan,  IG  Ves.  72.  gave  his  opinion  in  favor  of  the  uncle, 


324  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXI. 

state  of  facts,  is  not  in  general  sufficient  to  avoid  a  contract,  in 
which  those  rights  are  involved ;  while  a  mistake  as  to  the  facts 
themselves,  which  constitute  the  other  element  of  title,  may 
furnish  good  ground  in  equity  for  relief.  Thus  if  an  executor 
purchase  lands  belonging  to  his  testator's  estate,  at  a  public  sale 
made  by  himself  and  his  co-executors,  under  a  mistake  of  law  as 
to  the  power  of  sale  conferred  on  them  by  the  will ;  he  cannot  be 
relieved  in  equity.^  So  a  testator  devised  to  his  wife  the  use  of  all 
his  real  estate,  until  his  son  came  of  age,  if  she  should  continue 
his  widow,  and,  if  she  should  marry  again  before  his  son  came  of 
age,  he  bequeathed  to  her  certain  personal  property.  The  widow 
thus  married,  and  received  the  bequest.  The  land  was  sold  at 
sheriff's  sale,  as  the  property  of  tlie  son.  The  widow,  her  hus- 
band, and  the  purchaser  entered  into  an  indenture  under  seal, 
reciting  the  purchase,  subject  to  the  widow's  claim  by  right  of  her 
deceased  husband ;  and  agreeing  that  one-third  of  the  income 
should  be  paid  to  her  for  life.  The  statute  of  Pennsylvania  of 
April  4, 1797,  provides,  that  any  devise  or  bequest  to  the  testator's 
widow  shall  be  in  lieu  of  dower,  unless  the  testator  otherwise 
declare,  or  the  widow  elect  to  take  her  dower.  Held,  the  pur- 
chaser was  bound  to  perform  his  agreement.^  So  a  bill  in  chan- 
cery, brought  by  a  son  against  his  father,  alleged,  that  it  was 
agreed  between  the  parties,  that  the  plaintiff  should  purchase  of 
the  defendant  a  farm  of  the  value  of  |4,000,  and  give  two  promis- 
sory notes,  one  for  $2,000  on  demand  with  six  per  cent  interest, 
the  other  for  the  same  amount,  with  five  per  cent  interest,  payable 

1  Dill  V.  Shahan,  25  Ala.  694.  2  McAninch  v.  LaugliUn,  13  Penn.  371. 

because  lands  could  not  ascend ;  upon  disputes  and  lawsuits.  Upon  wliich  the 
which  the  parties  agreed  to  divide  tlie  schoolmaster  prepared  the  papers,  and 
lands,  and  accordingly  executed,  first  a  they  were  executed.  Lord  Chancellor 
bond  and  then  a  conveyance.  Tlie  plain-  King  decreed,  that  the  bond  and  convey- 
titf  brings  a  bill  for  relief  from  these  in-  ances  were  obtained  by  mistake,  and  mis- 
struments,  alleging  that  he  had  been  representation  of  the  law,  and  ordered 
surprised  and  imposed  upon  by  the  them  given  up  to  be  cancelled, 
schoolmaster  and  his  uncle.  The  uncle  This  case  was  closely  criticised,  and 
being  dead,  his  son  and  the  schoolmaster  doubted,  by  the  Supreme  Court  of  the 
were  made  defendants  ;  and  the  latter  United  States,  in  Hunt  v.  Rousmaniere, 
admitted  in  his  answer,  that  he  had  given  8  Wheat.  214;  1  Pet.  215;  and  also  by 
the  opinion,  being  misled  by  the  book.  Lord  Cottenham,  in  Stewart  v.  Stewart, 
and  that  he  had  recommended  to  the  par-  6  Clark  &  Fin.  966 ;  and,  so  far  as  it  pro- 
ties  to  take  further  advice ;  but  that  the  ceeds  upon  a  mere  riiistake  of  law,  is 
plaintiff  had  afterwards  told  him,  that,  if  undoubtedly  opposed  to  the  weight  of 
his  uncle  would,  he  would  agree  to  share  authority.  See  Story  on  Equity,  ch.  5, 
the  land  between  them,  let  it  be  whose  Mistake. 
right  it  would,  and  thereby  prevent  all 


CHAP.    XXI.]  MISTAKE.  325 

at  the  decease  of  the  defendant,  and  then  to  be  delivered  up  un- 
paid to  the  son  as  his  })ortion  of  the  father's  estate ;  that  the 
parties  thereupon  applied  to  a  Justice  of  tlie  Peace,  to  draw  the 
necessary  writings  to  carry  such  agreement  into  effect ;  but  by 
accident,  and  througli  their  own  Avant  of  knowledge,  they  failed  to 
give  him  the  information  requisite  for  this  purpose,  and  lie  drew 
the  last-mentioned  note  payable  in  three  years,  and  omitted  the 
stipulation  that  it  should  be  delivered  up  at  the  death  of  the  father, 
unpaid,  which  note  was  signed  by  the  plaintiff,  he  being  ignorant 
of  the  operation  of  law  thereon  ;  that  the  defendant  had  brought 
an  action  on  such  note,  and  was  endeavoring  to  enforce  it ;  and 
praying  for  an  injunction  and  other  relief.  Held,  1.  That  the 
mistake  was  not  a  mistake  of  fact,  but  of  law.  2.  That  parol  evi- 
dence was  inadmissible  to  prove  the  agreement  set  forth.  Bill 
dismissed. 1  So  a  vendor  is  bound  by  his  contract,  notwith- 
standing a  mistake  on  the  part  of  both  parties  to  the  contract 
as  to  his  legal  power  to  transfer  the  interest  of  his  wife  in  the 
land.2  The  Court  say  (p.  488)  :  "  The  plea  alleges  that  Hooper 
contracted  to  make  to  defendants  a  valid  conveyance,  and  failed 
to  do  so.  Does  it  .excuse  him  for  failing  to  comply  with  his  con- 
tract, that  the  defendants,  as  well  as  himself,  perhaps,  were  mis- 
taken in  reference  to  his  legal  power  to  act  for  his  wife,  and  on 
account  of  such  mistake,  accepted  an  invalid  deed  ?  ^(ooper  was 
as  much  bound  to  know  the  law  as  the  defendants.  If  he  knew  in 
fact  that  he  had  no  legal  power  to  act  for  his  wife,  he  perpetrated  a 
fraud  on  the  defendants  in  attempting  to  convey  for  her.  If  he  did 
not  know  that  he  had  not  legal  authority  to  act  for  her,  he  simply 
labored  under  a  mistake  of  the  law.  The  defendants  had  no 
motive  to  cheat  themselves,  by  accepting  an  invalid  conveyance ; 
and  must,  therefore,  have  acted  under  a  mistake.  The  mistake, 
then,  to  put  it  on  the  fairest  ground  for  Hooper,  was  mutual,  and 
can  hardly  furnish  an  excuse  for  his  failure  to  comply  with  his 
contract."^ 

4  a.  It  has  been  held,  however,  that  a  contract  entered  into 
under  a  mutual  misconception  of  legal  rights,  amounting  to  a 
mistake  of  law  in  tlie  contracting  parties,  by  which  the  object  of  it 
cannot  be  accomplished,  is  as  liable  to  be  set  aside  or  rescinded. 


1  Wheaton  v.  Wheaton,  9  Conn.  96.  3  ggg  Tlie  State  v.  Paup  et  al.,  13  Ark. 

2  McDaniel  v.  Grace,  15  Ark.  405.  129. 


326  LAW    OF   VENDORS    AND    PURCHASERS.  [CHAP.    XXI. 

as  a  contract  founded  in  mistake  of  matters  of  fact.^  So  where 
an  instrument  is  drawn  and  executed  for  the  purpose  of  carrying 
into  effect  a  previous  contract,  written  or  parol,  which  by  mistake 
of  the  draftsman,  in  fact  or  in  law,  does  not  fulfil  the  intention  of 
the  parties  ;  equity  will  correct  the  mistake.^  So  it  lias  been  held, 
that,  where  property  has  been  conveyed,  through  mistake,  which 
the  parties  never  intended  should  be  conveyed,  which  the  grantor 
was  under  no  legal  or  moral  obligation  to  convey,  and  which  the 
grantee  could  not  in  good  conscience  retain  ;  chancery  will  cor- 
rect the  mistake,  whether  it  arose  from  a  misapprehension  of  the 
facts,  or  of  the  legal  operation  of  the  deed.  Otherwise,  in  general, 
where  the  conveyance  was  such  as  the  parties  intended,  and  the 
grantee  may  in  good  conscience  retain  the  property ;  although  the 
grantor  may  mistake  the  extent  of  his  title .^  And  the  general  dis- 
tinction is  made,  that  equity  will  not  relieve  for  mistake  of  law, 
unless  such  mistake  be  a  gross  one."^ 

6.  With  regard  to  the  mode  and  extent  of  the  relief  afforded  by 
Courts  of  Equity  for  mistakes  of  fact,  it  is  held  that  equity  will 
relieve  against  mistakes  as  well  as  frauds,  either  in  a  deed  or  con- 
tract in  writing ;  and  this,  either  where  the  plaintiff  seeks  relief 
affirmatively,  on  the  ground  of  mistake,  or  where  the  defendant 
sets  it  up  as  a  defence,  or  to  rebut  an  equity.^  So,  it  seems,  either 
by  requiri^ig  the  refunding  of  money  paid  under  the  contract,  or 
by  annulling  the  contract  itself.^  Thus  the  common  mistake  of 
both  parties  to  a  contract  is  held  to  avoid  such  contract."  So,  spe- 
cific performance  of  an  agreement  being  a  subject  of  discretion,  it 
is  refused  in  case  of  mistake,  though  there  be  no  fraud.^  Thus 
trustees  will  not  be  compelled  to  perform  an  agreement,  entered 
into  under  mistake,  to  sell  for  an  inadequate  consideration.^  So 
relief  is  given  against  a  contract,  wliere  the  purchaser  knew  that 
the  vendors,  the  assignees  of  a  bankrupt,  were  ignorant  of  a  cir- 
cumstance considerably  increasing  the  value.^*^  So  a  conveyance 
obtained  from  persons  uninformed  of  their  rights  is  set  aside, 
though  there  was  no  actual  fraud  or  imposition. ^^ 

1  Champlin  v.  Laytin,  1  Edw.  471.  ^  Cliamplin  v.  Laytin,  18  Wend.  407  ; 

2  Eogers   v.   Atkinson,    1    Kelly,    12;  Griswold  i-.  Smith,  10  Vern.  452. 
Collier  v.  Lanier,  1  Kelly,  238.  ''  Stapylton  v.  Scott,  13  Ves.  427. 

3  Stedwell  v.  Anderson,  21  Conn.  139.  ^  INIason  v.  Armitage,  13  Ves.  25. 

4  Haden  v.  Weare,  15  Ala.  149.  9  Bridger  v.  Rice,  1  Jac.  &  Walk.  74. 

5  Rogers   v.   Atkinson,    1    Kelly,    12 ;  10  Turner  v.  Harvey,  Jac.  169. 
Collier    v.   Lanier,   ib.   238  ;    Goodell   v.  n  Evans  v.  Llewellyn,  2  Bro.  C.C.  150. 
Field,  15  Verm.  576 ;  Rosevelt  v.  Fulton, 

2  Cow.  129. 


CHAP.    XXI.]  MISTAKE.  327 

6.  But  it  is  equally  well  settled,  that  Courts  of  Chancery  will 
not  interfere  to  correct  alleged  mistakes  in  contracts  and  deeds, 
or  set  them  aside,  unless  those  mistakes  are  admitted  by  the 
defendant's  answer,  or  very  conclusively  proved.^  Thus  evidence 
drawn  from  the  admissions  of  parties,  in  a  casual  conversation, 
when  they  are  not  supposed  to  state  all  the  facts  in  relation  to 
a  particular  subject,  has  been  held  not  satisfactory  for  this  pur- 
pose.2  So  it  is  said,  "  It  must  be  plainly  made  out,  that  the  parties 
meant  in  their  final  instruments  merely  to  carry  into  effect  the 
arrangements  designated  in  the  prior  contract  or  articles.  The 
very  circumstance,  that  the  final  instrument  of  conveyance  or 
settlement  differs  from  the  preliminary  contract,  affords  of  itself 
some  presumption  of  an  intentional  change  of  purpose  or  agree- 
ment, unless  there  is  some  recital  in  it,  or  some  other  attendant 
circumstance,  which  demonstrates,  that  it  was  merely  in  pursu- 
ance of  the  original  contract."  ^  So  it  is  held,  that  the  party 
suffering  from  mistake  must  take  prompt  steps  for  relief.'*  And,  if 
the  contract  is  made  under  a  mutual  mistake  as  to  the  title,  the 
vendee  is  entitled  to  a  rescission,  if  he  seeks  it  m  a  reasonable  time 
after  discovery  of  the  mistake,  and  abandons  the  possession, 
delivering  or  offering  to  deliver  it  to  the  vendor  ;  the  right  to 
rescission  not  depending  upon  his  payment  or  offer  of  the  purchase- 
money,  nor  upon  the  vendor's  insolvency,  but  upon  his  own 
promptness  in  seeking  such  rescission. ^(a) 

1  Griswold  v.  Smith,  10  Verm.  452.  *  Beard  v.  Hubble,  9  Gill,  420. 

'^  Cleavland  v.  Burton,  11  Verm.  138.  5  Smith  v.  Robertson,  23  Ala.  312. 

3  1  Story's  Eq.  169,  §  152;  177,  §  160. 

(a)  Bill  for  specific  performance.     The  illustrate  the  prevailing  rule  for  enforcing 

defendant,  a  mortagee  with  power  of  sale,  or  refusing  specific  performance  in  cases 

having    obtained    a    foreclosure    decree,  of  this  nature  :  "  Relief  by  way  of  specific 

agreed  to  sell  the  estate,  with  a  proviso  performance  is  always  witfiin  the  discretion 

for   the    usual   covenant  against    incum-  of  the  Court.    This  iliscretion  is  of  course 

brance  created  by  herself     The  plaintiff,  to  be  exercised  carefully.      Specific  per- 

the  purchaser,  objected  to  the  validity  of  formance  is  not  to  be   withheld  merely 

the  decree,  and  required  a  conveyance  upon  a  vague  idea  as  to  the  true  efi'ect  of 

under  the  power,  which   being   refused,  the   contract   not    having    been    known, 

this   suit  was   brought.      The  defendant  But,  upon  the  evidence  in  this   case,   I 

proved  that  the  above  clause  was  inserted  think  that,  although  there  may  liave  been 

inadvertently,  and  that  she  never  designed  an  intention  to  comi)lete  after  the  mort- 

to  incur  the  risk  of  opening  the  foreclos-  gage  title,  there  was  no  impression  on  Mr. 

ure    by    conveying    under    the    power.  Fisher's  part  that  the  efiect  would  be  to 

Held,  a  good   defence;  and  that  the  bill  convert  the  defendant  into  a  trustee  of  the 

should  be  dismissed,  unless  the  plaintiff"  surplus   for   the   mortgagors.      He    may 

would  accept  the  conveyance  which  the  have  intended  that  the  purchase  should 

defendant  was  ready  to  execute.     Watson  be   completed    under   the  i)ower;    but   it 

V.  Marston,  31  Eng.  L.  &  Eq.  "167.     The  clearly  was  not  his   intention  to  deprive 

foUowmg  remarks  of  the  Court  (p.  172)  the  defendant  of  the  benefit  of  the  fore- 


328 


LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XXI. 


7.  TVe  have  already  had  occasion, (a)  in  considering  the  general 
subject  of  title,  to  discriminate  between  the  different  classes  of  cases, 
in  which  mistakes  occur,  with  regard  to  the  property  sold,  or  its 
quantity  or  value ;  sometimes  not  in  any  way  affecting  the  validity 
of  the  contract ;  sometimes  merely  giving  the  right  of  compensation 
or  indemnity  ;  and  sometimes  authorizing  an  entire  rescission.  At 
the  risk  of  occasional  repetition,  it  becomes  necessary,  in  the  present 
connection,  as  bearing  directly  upon  the  subject  of  this  chapter,  to 
consider  the  effect  of  mistake  upon  the  binding  authority  of  the  con- 
tract of  sale  and  purchase,  in  the  threefold  aspect  above  mentioned. 

8.  The  most  common  mistake  in  sales  of  real  estate  relates  to 
the  quantity  of  land  conveyed,  as  compared  with  the  agreement  or 
intent  of  the  parties  upon  that  subject.  The  general  principle  is 
laid  down,  that  the  vendor  of  land,  as  containing  a  certain  quan- 
tity, more  or  less,  when  he  knows  from  the  title-deeds  or  otherwise 
that  it  contains  a  much  less  quantity,  is  in  equity  bound  to  make 
good  the  difference.     But,  where  a  contract  has  been  consummated 


closure.  The  rules  upon  which  the  Court 
acts  will  appear  from  two  or  three  cases. 
In  Costigan  v.  Hastier,  2  Sch.  &  Lef.  166, 
Lord  Redesdale  said,  'When  a  person 
undertakes  to  do  a  thing  whicli  he  can 
himself  do,  or  lias  the  means  of  making 
others  do,  the  Court  compels  him  to  do  it, 
or  procure  it  to  be  done,  unless  the  cir- 
cumstances of  the  case  make  it  highly  un- 
reasonable to  do  so.  Hastier  had  a  con- 
tract with  Parker,  which  he  could  have 
carried  into  execution,  provided  lie  could 
either  have  got  the  consent  of  the  mort- 
gagee to  the  lease,  contracted  for  by 
Parker,  or  the  claim  of  the  mortgagee 
could  have  been  satisfied  by  payment  of  a 
mortgage  debt.  If  a  mortgagor  contracts 
to  make  a  lease,  the  tenant  has  a  right  to 
say,  "  You  shall  eitlier  obtain  the  consent 
of  the  mortgagee  or  redeem  the  mortgage  ; 
or  if  yo>i  complain  of  the  hardship  of  this, 
you  shall  reschid  the  contract."  A  Court 
of  Equity  may  not  compel  the  mortgagor, 
if  highly  inconvenient,  to  pay  off'  the 
mortgage  for  the  purpose  of  giving  effect 
to  the  contract ;  but  then  he  sliall  not  en- 
force it  against  the  tenant,  if  the  tenant 
does  not  wish  to  abide  by  it.  If  the  ten- 
ant will  not  give  up  the  contract,  the 
Court  might  say  that  it  should  not  be 
specifically  enforced  against  the  landlord 
under  such  circumstances,  and  leave  the 
tenant  to  seek  his  compensation  in  dam- 
ages at  law.'     Wedgewood  v.  Adams,  6 


Beav.  605,  was  as  strong  a  case  as  could 
be.  There  Lord  Langdale  said,  '  I  con- 
ceive the  doctrine  of  the  Court  to  be  this, 
that  the  Court  exercises  a  discretion,  in 
cases  of  specific  performance,  and  directs 
a  specific  performance  unless  it  should  be 
what  is  called  highly  unreasonable  to  do 
so.  What  is  more  or  less  reasonable  is 
not  a  thing  that  you  can  define  ;  it  must 
dejiend  on  the  circumstances  of  each  par- 
ticular case.  The  Court,  therefore,  must 
always  have  regard  to  the  circumstances 
of  each  case  and  see  whether  it  is  reason- 
able that  it  should,  by  its  extraordinary 
jurisdiction,  interfere  and  order  a  specific 
performance,  knowing  at  the  time  that  if 
it  abstains  from  so  doing,  a  measure  of 
damages  may  be  found  and  awarded  in 
another  Court.  Though  you  cannot  de- 
fine what  may  be  considered  unreason- 
able, by  way  of  general  rule,  you  may 
very  well,  in  a  particular  case,  come  to  a 
balance  of  inconvenience,  and  determine 
the  propriety  of  leaving  the  plaintiff'  to 
his  legal  remedy  by  recovery  of  damages. 
If  we  acceded  to  tlie  respondent's  argu- 
ment, we  should,  I  think,  be  deviating 
from  the  principles  on  which  the  Court 
has  acted  in  these  cases.  The  Court  does 
not  refuse  a  specific  performance  on  the 
arbitrary  discretion  of  the  Judge.  It 
must  be  satisfied  that  the  agreement 
would  not  have  been  entered  into  if  its 
true  effect  had  been  understood.'  " 


(a)  See  Title. 


CHAP.    XXI.]  MISTAKE.  329 

without  any > fraud,  misrepresentation,  or  concealment  as  to  the 
quantity,  the  Court  will  not  inquire  wliether  there  has  been  a  mis- 
take upon  that  point. ^  Thus  if  the  vendor  sells,  and  the  vendee 
buys,  a  tract  of  land,  for  so  many  acres,  more  or  less,  and  it  turns 
out,  upon  a  survey,  that  there  is  less  than  the  estimated  quantity, 
the  buyer  shall  not  be  relieved  in  equity.^  So  it  is  said,  the  cases 
in  which  equity  interferes,  where  the  quantity  of  the  land  exceeds 
or  falls  short  of  that  specified  in  the  dieed  or  contract,  are  those  in 
which  the  sale  has  been  made  hy  the  acre  or  foot ;  or  where  there 
has  been  fraud  or  wilful  misrepresentation  on  the  part  of  the 
party  against  whom  relief  is  sought.^  And  even  where  there  is  a 
written  contract  for  the  sale  of  land  by  the  acre,  equity  will  not 
relieve  the  purchaser  on  the  ground  of  a  mutual  mistake  as  to  the 
boundaries,  unless  the  mistake  be  fully  and  clearly  proved.'* 

9.  But,  in  general,  on  a  sale  of  land  by  the  acre,  relief  is  to  be 
granted  for  all  deficiencies,  not  reasonably  imputable  to  the  varia- 
tion of  instruments  and  small  errors  in  surveys,  whether  the  pur- 
chaser has  expressly  retained  an  election  to  have  the  tract  sur- 
veyed or  not.^  And  this  principle  is  not  departed  from,  but  in 
case  of  a  sale  by  the  tract,  the  purchaser  clearly  agreeing  to  take 
the  hazard  of  all  deficiencies  upon  himself.^(a) 

i  Veeder  v.  Fonda,  3  Paige,  94.  See  Quesnell  v.  Woodlief,  2  H.  &  M.  174 ; 

2  Joliffe  V.  Hite,  1  Call,  262.  Nelson  v.  Matthews,  ib.  164,  181. 

3  Morris,  &c.  v.  Enimett,  9  Paige,  168.  «  See  Joliffe  v.  Hite,  1  Call,  301,  329 ; 
*  Leas  V.  Eidson,  9  Gratt.  277.  Hull  v.  Cunningham,  1  Munf.  336  ;  Grant- 
5  Nelson  v.  Carrington,  4  Munf.  332.  land  v.  Wight,  2  Munf.  179 ;   Duvals  v. 

Eoss,  ib.  290. 

(a)  If  A.  purchase  a  tract  of  land  as  dred  ninety-one  acres  and  a  quarter,  and 
containing  about  a  specified  number  of  allowance,  at  twelve  shillings  and  six- 
acres,  more  or  less,  at  a  certain  price  per  pence  per  acre."  The  plaintiff' afterwards 
acre,  "  the  quantity  to  be  ascertained  by  obtained  patents  in  his  own  name,  and 
actual  survey,  if  A.  shall  require  it;"  executed  a  conveyance  of  the  tracts  to 
this  is  a  sale  by  the  acre,  if  A.  shall  re-  the  defendant,  describing  them  by  courses 
quire  the  survey.  And  if  no  time  be  and  distances  according  to  the  patents, 
specified  for  making  his  election,  he  may  and  as  "  containing  in  the  whole  nine 
demand  the  survey  at  any  time  before  hundred  ninety -one  acres  and  a  quarter, 
the  whole  business  shall  have  been  con-  and  allowance,  &c.,  be  the  same  more  or 
eluded,  and  a  title  to  the  land  made  or  less."  The  defendant,  having  previously 
tendered  by  the  vendor.  So  though  he  paid  a  part  of  the  purchase-money,  gave 
has  taken  possession,  or  given  bonds  for  his  bonds  for  the  balance  on  the  day  after 
the  purchase-money.  Nor  is  such  right  the  conveyance,  with  a  mortgage  on  the 
necessarily  limited  by  the  last  day  of  pay-  three  tracts,  stating  them  to  contain  "  in 
ment ;  for  even  then  he  is  not  bound  to  the  whole  nine  hundred  ninety-one  acres 
part  with  the  purchase-money,  nor  to  and  a  quarter,  and  allowance,"  and  de- 
make  a  final  adjustment  of  the  balance  scribing  them  by  courses  and  distances. 
due,  unless  a  title  is  made  or  tendered.  Upon  a  survey  made  twelve  years  after- 
agreeably  to  the  contract.     4  Munf  332.  wards,  the  tracts  were  ascertained  to  fall 

The  plaintiff  sold  to  the  defendant  short  88  acres,  48  perches.  Held,  the  de- 
three  tracts  of  land,  "  containing  nine  hun-  feudant  was  not  entitled  to  any  deduction 


330 


LAW  OF  VENDORS  AND  PURCHASEES.    [CHAP.  XXI. 


10.  We  have  heretofore  spoken  of  the  effect  upon  the  sale  of 
a  jyartial  want  of  title.  This  is  to  be  understood  as  the  result 
of  mistake;  inasmuch  as  any  fraud  of  the  vendor  avoids  the 
sale,  alike  whether  the  failure  of  title  be  partial  or  total.  The 
general  remark  may  be  here  repeated,  that  partial  failure  is  not  a 
ground  for  an  entire  rescinding.  Thus  the  complainant  sold  at 
auction  to  the  defendant  several  parcels  of  adjoining  land,  sepa- 
rately, but  delayed  several  years  to  execute  the  conveyances,  though 
importuned  to  do  so.  Afterwards  the  defendant  discovered,  that 
the  title  of  one  of  the  tracts,  a  principal  one,  was  not  in  the  ven- 
dor, and  refused  to  complete  the  purchase ;  alleging  that  this  tract 
was  the  principal  object  of  the  purchase,  but  offering  on  the  trial 
no  proof  of  this  allegation.  Held,  there  was  no  ground  to  vacate 
the  contract ;  that  the  delay  in  executing  the  conveyances  should 
not  prevent  a  specific  performance,  but  was  ground  only  for  deduct- 
ing interest.^(a) 

1  Osborne  v.  Bremar,  1  Desaus.  486. 


from  his  bonds  on  account  of  the  defi- 
ciency. 

Bond,  to  convey  a  lot  of  land,  number 
78,  in  the  townsliip  of  Lysander,  &c.,  con- 
taining 600  acres.  A  deed  was  delivered, 
describing  the  lot  as  "  containing  600 
acres,  be  the  same  more  or  less."  On 
actual  survey,  the  lot  was  found  to  con- 
tain only  42i(|  acres.  In  an  action  on  the 
bond,  held,  the  mention  of  the  quantity  of 
acres  was  matter  of  description,  and  the 
delivery  of  the  deed  for  the  lot,  according 
to  its  usual  and  known  description,  was  a 
performance  of  the  bond.  Mann  v.  Pear- 
son, 2  Johns.  37. 

Agreement  by  A.,  in  November,  1811, 
to  convey  "  all  his  plantation  in  L.  town- 
ship, adjoining  lands  of  D.,  B.,  and  others, 
retierence  being  had  to  several  deeds  of 
conveyance  to  A.  will  show  the  metes 
and  bounds  ;  the  whole  tract  contains  225 
acres  and  allowance ;  201  acres  the  said 
A.  has  a  patent  deed  for,  and  the  remain- 
ing 24  he  will  also  get  a  patent  deed  for." 
In  April,  1812,  a  conveyance  was  made 
of  22.5  acres,  more  or  less,  the  hand-money 
paid,  and  bonds  given  for  tlie  residue. 
In  1823,  the  vendee  discovered  by  actual 
measurement,  that  the  patented  tract  fell 
short  20  acres  and  90  perches.  Held,  he 
was  not  entitled  to  any  deduction,  in  a 
suit  on  one  of  the  bonds,  for  this  defi- 
ciency. Frederick  v.  Campbell,  13  S.  & 
R.  136 ;  M'Lelland  v.  Creswell,  ib.  148. 

(a)  It  is  no  ground  for  rescinding  a 
sale,  that  lands  have  by  mistake  been  in- 


cluded in  the  deed,  to  which  the  vendor 
has  no  title,  but  which  did  not  make  part 
of  the  property  purchased.  Butler  v. 
Miller,  15  B.  Mon.  617.  The  Court  say 
(p.  626),  "Miller  does,  however,  allege 
in  general  terms  that  the  plaintifis  had  no 
valid  title  to  the  lands  sold  him,  and  that 
to  a  portion  of  it  they  had  no  valid  or 
colorable  title  whatever.  It  appears  in 
testimony  that  the  title  is  in  some  re- 
spects defective ;  although  Fitch  and 
those  under  whom  he  claimed  had  been 
in  the  possession  of  it  for  many  j'ears, 
claiming  it  as  their  land,  and  the  defend- 
ant has  been  in  the  undisturbed  possession 
of  the  whole  of  the  property  actually  pur- 
chased by  him,  ever  since  he  obtained  the 
possession  of  it  imder  his  contract.  The 
charge  of  fraud  against  the  vendors  is 
wholly  unsupported.  They  deny  having 
made  any  representations  to  the  purchaser 
about  the  title,  or  to  have  stated  to  hira 
that  the  title  was  good,  although  they  ad- 
mit they  may  have  said  that  in  their  opin- 
ion it  was  good.  It  does  not  appear  that 
tliey  said  or  did  any  thing  to  induce  the 
purchaser  to  believe  they  had  any  knowl- 
edge of  the  goodness  of  the  title.  The 
very  terms  upon  which  they  proposed  to 
sell  should  have  put  him  on  his  guard, 
and  induced  him  to  investigate  the  title 
for  himself.  They  only  agreed  to  convey 
the  title  which  had  been  vested  in  them 
without  any  covenant  of  warranty,  and 
without  any  responsibility  upon  them- 
selves  whatever.      He    purchased    from 


CHAP.    XXI.] 


MISTAKE. 


331 


11.  Substantially  the  same  point  arises,  in  connection  with  the 
claim  of  compensation  for  any  partial  failure  to  comply  with  the 
contract,  whether  by  reason  of  partial  defect  of  title  to  the  whole 
property,  or  of  partial  or  total  want  of  title  to  a  part  of  the  prop- 
erty. Upon  these  subjects,  the  cases  are  by  no  means  uniform, 
and  law  and  equity  adopt  very  different  rules. 

11  a.  It  is  held,  that  a  Court  of  Equity  may  inquire  into  all  the 
circumstances,  and  ascertain  how  far  one  part  of  the  bargain  in- 
duced the  rest,  and  award  compensation  accordingly ;  l)ut  at  law 
a  vendor  cannot  on  an  entire  contract  recover  any  part  of  the  pur- 
chase-money, where  he  is  unable  to  make  title  to  the  whole  estate, 
nor  is  a  purchaser  entitled  to  retain  that  part,  the  title  to  which  is 
good,  and  vacate  the  contract  as  to  the  rest.^     Thus  it  is  held,  that, 

1  Johnson  v.  Johnson,  3  B.  &  P.  162 ;  Chit,  on  Contr.  303. 


them  upon  these  terms,  anrl  after  having 
had  time  to  examine  tlie  title  he  accepted 
a  deed  from  them  in  fulfihnent  of  tlie  con- 
tract upon  tlieir  part.  Tiie  fact  that  the 
deed  does  not  contain  a  covenant  of  war- 
ranty, cannot  operate  in  his  favor.  It 
proves  that  lie  did  not  only  rely  upon  his 
vendors,  but  was  willing  to  purchase  the 
propei'ty  and  risk  the  title.  Purchasers 
have  a  right  to  make  such  risking  con- 
tracts, and  when  made  can  only  be  re- 
lieved from  them  upon  the  ground  of 
fraud  in  their  procurement." 

Ejectment.  The  plaintiff  agreed  to 
convey  all  his  right,  &c.,  in  tract  No. 
3133,  when  in  fact  "the  tract  was  No.  4821. 
The  purchasers  had  examined  the  land 
before  the  sale,  and  they  entered  and 
made  improvements,  but  did  not  pay  the 
price.  Held,  the  misdescription  was  no 
defence  to  this  action.  Miles  v.  William- 
son, 21  Penn.  135.  Black,  C.J.,  says  (p. 
142),  "The  vendees  saw  the  land,  exam- 
ined the  lines  on  the  ground,  investigated 
the  vendor's  title,  and  took  it  at  their  own 
risk.  They  got  possession  of  the  very 
land  which  they  meant  to  buy,  and  which 
the  other  party  intended  to  sell  them. 
The  defendants  insist  that  this  error  en- 
titles them  to  keep  the  land  without  pay- 
ing the  purchase-money.  They  will 
neither  rescind  the  contract  nor  perform 
it,  and  this  action  is  brought  to  compel 
one  or  the  other.  The  jury  were  in- 
structed that  although  the  vendees  agreed 
to  run  the  risk  of  the  title,  yet  if  the  ven- 
dor was  guilty  of  any  fraudulent  misrepre- 
sentation the  contract  was  void',  and  he 
could  not  recover;  and  that,  if  the  con- 


tract was  made  under  a  mutual  mistake 
injurious  to  the  vendees,  there  should  be 
a  deduction  from  the  purchase-money 
large  enough  to  compensate  for  the  loss. 
It  is  impossible  to  see  how  any  thing  bet- 
ter for  the  defendants  could  have  been 
done.  The  jury  negatived  the  allegation 
of  fraud,  and,  by  allowing  nothing  to  the 
defendants  for  the  mistake  in  the  number, 
they  declared  their  conviction  that  it  did 
no  injur}'.  The  vendees  got  possession 
of  the  land  they  bought  witii  perhaps  a 
defective  title  ;  l)ut  the  verdict  is  conclu- 
sive upon  us  tliat  the  title  would  have 
been  no  better  than  it  is  if  the  land  had 
been  found  to  lie  within  the  limits  of  the 
survey  which  was  supposed  to  embrace 
it.  The  defendants  complain  of  it  as  a 
hardship  that  they  should  be  compelled 
to  surrender  possession  after  making  im- 
provements. They  took  the  title  at  their 
own  risk,  and  of  course  improved  the  land 
on  the  same  terms.  A  vendee  cannot 
improve  away  the  vendor's  right  to  the 
purchase-money.  One  who  has  bought 
land  with  his  eyes  open,  and  without  a 
warranty,  is  as  much  bound  to  pay  for  it 
after  he  puts  up  a  building  on  it  as  he  was 
before.  These  defendants  are  not  asked 
to  surrender  the  land,  and  lose  tlieir  im- 
provements. They  may  keep  both  if  they 
will  perform  their  covenant." 

A  vendee  cannot  avoid  specific  perform- 
ance, or  claim  compensation,  upon  the 
ground  that  after  the  sale  tlie  land  was 
laid  out  into  streets  in  a  way  not  antici- 
pated by  the  parties,  and  injuriously  af- 
fecting the  shapes  of  the  lots  ;  there  being 
no  warranty  or  misrepresentation  by  the 
vendor.     Morgan  v.  Scott,  20  Penn.  51. 


332  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XXI. 

where  a  farm  is  sold  for  a  gross  sum,  or  at  so  much  per  acre,  and 
the  quantity  mistaken  by  the  parties,  equity  will  relieve  the  party 
injured.  The  vendee  has  a  right  to  take  the  farm  at  the  price 
of  the  real  number  of  acres,  and  to  have  compensation  for  the  defi- 
ciency, if  he  has  paid  the  consideration.  Though  it  may  be  other- 
wise, if  the  statement  of  the  quantity  be  mere  matter  of  descrip- 
tion, and  not  of  the  essence  of  the  contract ;  as  where  the  contract 
contains  the  words  "  more  or  less,"  or  "  containing  by  estimation," 
&c. ;  without  any  fraud  or  wilful  misrepresentation  of  the  quan- 
tity.^ More  especially,  want  of  title  to  an  unimportant  part  of  the 
land  is  a  subject  of  compensation,  not  a  ground  for  rescission.^ 
Where  a  purchaser  cannot  get  a  title  'to  all  he  contracted  for,  if  he 
can  get  the  substantial  inducemeyit  to  the  contract,  he  may  insist 
upon  taking,  or  he  may  be  compelled  to  accept,  a  title,  with  rea- 
sonable compensation.^  While,  on  the  other  hand,  in  a  sale  of  land 
by  the  acre,  and  not  of  a  tract  in  gross,  if  an  unusual  and  unrea- 
sonable excess  or  deficit  appears,  chancery  will  relieve ;  particu- 
larly if  the  deed  contains  no  indication  that  the  vendor  intended  to 
sell  the  tract  "  more  or  less."  ^  Thus  a  mistake  of  the  parties,  in 
a  sale  by  the  acre,  of  the  boundaries  of  the  patent  under  which  the 
vendor  sold,  whereby  he  sold  and  conveyed  1,000  acres  outside  of 
the  grant,  is  ground  for  relief  against  payment  of  so  much  of  the 
purchase-money  ;  although,  the  land  not  obtained  not  being  mate- 
rial to  the  purchaser,  he  cannot  have  a  rescission.^ 

11  h.  Whether  a  sale  be  by  the  acre,  or  in  gross,  is  a  question  of 
intention,  to  be  collected  from  all  the  circumstances  of  the  trans- 
action.^ Under  a  written  agreement  to  purchase  a  farm  for  a  gross 
price,  without  specifying  the  number  of  acres,  the  purchaser  is  en- 
titled to  an  abatement  of  price,  upon  proof  that  it  was  represented 
to  him  by  the  seller  to  be  very  much  larger  than  it  really  is,  the 
error  being  an  honest  mistake  of  both  parties.''^  So  it  is  immaterial 
that  there  was  a  verbal  agreement  that  the  buyer  should  take  the 
farm  as  a  certain  number  of  acres,  be  it  more  or  less,  there  being 
no  pretence  that  this  qualification  was  left  out  of  the  writing  by 
any  mistake.  It  is  to  be  understood,  from  an  agreement  as  above, 
that  the  seller  represented  that  the  farm  contained  that  number  of 

1  Stebbins  v.  Eddy,  4  Mas.  414.  5  Grant  v.  Coombs,  6  Monr.  281, 

2  Durrett  v.  Simpson,  3  Monr.  519.  ^  Bierne  v.  Erskine,  5  Leigh,  59. 

3  Evans  v.  Kingsberry,  2  Rand.  120.  '  Kent  v.  Carcaud,  17  Md.  291. 

4  Whaley  v.  Eliot,   1   A.   K.   Marsh. 
343. 


CHAP.    XXI.]  MISTAKE.  333 

acres,  and  the  abatement  is  to  be  made  accordingly.  If  sold  in 
gross,  for  so  much,  be  it  more  or  less  ;  yet,  if  both  parties  were 
clearly  mistaken  in  a  material  point,  as  to  the  lines  by  which  the 
vendor  held,  and  there  was  no  express  agreement  of  the  purchaser 
to  take  the  risk,  equity  will  give  relief  for  the  deficiency.  But 
unless  the  purchaser,  by  eviction  or  otherwise,  lose  the  land  he 
expected  to  get ;  as  if  he  make  an  entry  for  it  as  vacant,  and  ob- 
tain a  patent :  the  proper  measure  of  relief  is  only  the  amount  of 
his  expenditures  in  procuring  the  patent,  with  a  reasonable  allow- 
ance for  trouble,  and  actual  costs  of  suit.^(a) 

12.  Where  a  vendor  erroneously  supposes  he  has  title  to  certain 
land,  and  contracts  to  sell  and  convey  it,  he  cannot  be  compelled 
to  convey  an  adjoining  lot,  to  which  he  has  title.^ 

12  a.  Where  it  was  discovered  that  a  vendor  took  by  his  own 
deed  only  an  undivided  two-thirds  of  the  land  sold,  and  he  refused 
to  convey,  although  the  vendee  was  willing  to  take  the  land,  paying 
a  proportional  price ;  held,  the  latter  was  entitled  to  specific  per- 
formance, but  could  not  properly  be  further  ordered  to  deliver  up 
possession  of  the  whole  land,  and  charged  with  rent  for  the  whole 
from  the  time  when  a  deed  should  have  been  given.^ 

13.  A  deduction,  for  want  of  title  to  part  of  the  land,  was 
directed  to  be  taken  equally  off  all  the  instalments.* 

1  Hull  V.  Cunningham,  1  Munf.  330.  3  Covell  v.  Moseley,  16  Midi. ;   Law 

2  Morse  v.  Elmendorf,  11  Paige,  277.       Reg.  Jan.  1868,  p.  I'Jl. 

4  Grant  v.  Coombs,  6  Mon.  281. 

(a)  Diminution  of  one  hundred  and  eight  hundred  acres,  he  afterwards  sold  it 

seventy-one  acres  of  higii  land,  out  of  six  to  tiie  plaintiff,  according  as  it  had  been 

hundred  and  sixty-two  acres  of  iiigh  and  held  by  him  and  his  ancestors  under  the 

swamp  land.     Notice  was  given  at  the  sale  old  survey,  for  £3,200   (equal  to  £\  per 

that  a  claim  existed,  and  that,  if  it  sue-  acre),  offering  to  survey  it,  if  the  plaintiff 

ceeded,  a  proportional  deduction  would  be  would  pay  at  the  same  rate  for  the  excess  ; 

made.     Moreover,  the  purchaser  volunta-  which  the  latter,  (who  also  believed  that 

rily  renewed  the  bond  for  the  price  in  part  it   contained   more   than   eight    hundred 

to  a  third  person,  several  years  after  the  acres,  as  it  was  an  old  survey),  declined, 

purchase  ;  and  the  renewed  bond  had  been  Subsequent  to  the  execution  of  the  deed, 

assigned  for  valuable  consideration.    Held,  the  jjlaintifF  had  the  land  surveyed,  and 

no  ground  for  a  rescission ;  but  that  the  found  it  to  contain  much  less  than  eight 

purchaser  was  entitled  to  a  deduction  out  hundred  acres.     Whereupon   he   filed   a 

of  the  original  bond;  also  of  interest  till  a  bill  in  chancery,  for  a  proportional  dednc- 

resurvey  by  the  vendor.     Wainwright  tf.  tion  from  the  purchase-money.     Held,  tlie 

Read,  1  Desaus.  573.  deficienc}'  was  too  great  for  a  purchaser, 

In  1788,  tlie  defendant,  owning  a  tract  notwithstanding  the    sale  was   for   eight 

of  land  called  Sion  Hill,  held  by  him  and  hundred  acres,  more  or  less.     Decree  for 

his  forefathers  mider  a  survey  upwards  of  a  deduction,  and  also  an  indemnity  against 

a  hundred  years  old,  advertised  it  for  sale  all  charges  and  incumbrances  on  the  es- 

as  containing  about  eight  hundred,  acres ;  tate.     Quesnel  v.  AVoodlief,  6  Call,  218; 

and  believing  that,  as  it  was  an  old  sur-  S.C.  2  Hen.  &  Munf.  173,  n. 
vey,  it  would  probably  contain  more  than 


334  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    XXI. 

14.  There  is  a  still  stronger  class  of  cases,  where  equity  will 
wholly  rescind  or  annul  the  bargain,  by  reason  of  mistake  of  one  or 
both  of  the  parties.  Thus  it  is  said,  that  a  vendor  is  bound  to 
know  he  actually  has  that  which  he  professes  to  sell.  And,  even 
though  the  subject  of  the  contract  be  known  to  both  parties  to  be 
liable  to  a  contingency,  which  may  destroy  it  immediately,  yet,  if 
the  contingency  has  already  happened,  it  will  be  void.^  Hence, 
if  one  person  should  sell  a  messuage  to  another,  which  was  at  the 
time  swept  away  by  a  flood,  or  destroyed  by  an  earthquake,  without 
any  knowledge  of  the  fact  by  either  party ;  equity  would  relieve 
the  purchaser.^  So  if  a  life-estate  be  sold,  which,  at  the  time  of 
sale,  is  terminated  by  the  death  of  the  party  in  whom  it  is  vested, 
but  without  the  knowledge  of  either  party  ;  equity  will  rescind 
the  contract.^  So  where  a  purchaser  buys  the  interest  of  a  vendor 
in  a  remainder  in  fee,  expectant  on  an  estate  tail ;  if,  at  the  time  of 
the  contract,  the  tenant  in  tail  had  actually  suffered  a  recovery, 
of  which  both  parties  were  ignorant  till  after  the  conveyance  had 
been  executed,  and  an  absolute  bond  given  for  the  purchase-money ; 
equity  will  rescind  the  contract,  on  the  ground  that  the  vendor  had 
no  interest  in  the  subject-matter  at  the  time  of  the  sale.^  So  where, 
by  the  mistake  of  both  parties,  one  contracted  to  sell  and  convey, 
and  the  other  to  purchase  and  pay  for,  a  supposed  gore  of  land, 
which  had  in  fact  no  actual  existence  ;  the  vendee  cannot  file  a  bill 
in  equity  for  specific  performance,  or  for  a  compensation  in  dam- 
ages.^ So  where  an  estate  is  purchased  at  auction,  under  a  mistake 
as  to  the  lot  put  up  for  sale,  tlie  Court  will  not  decree  specific  per- 
formance against  the  purchaser,  but  leave  the  vendor,  if  he  has 
sustained  any  damage  by  the  mistake  of  the  purchaser,  to  his  rem- 
edy at  law.  A  bill  for  specific  performance  was  accordingly  under 
such  circumstances  dismissed,  without  costs.^  So  where,  at  the 
time  of  entering  into  a  contract  for  the  sale  of  a  tract  of  land,  there 
was  a  misunderstanding  between  the  parties  as  to  the  identity  of 
the  land,  to  which  the  contract  related  ;  a  Court  of  Equity,  in  its  dis- 
cretion, ought  not  to  interfere  by  decreeing  a  specific  performance.'^ 
15.  And  the  general  doctrine  upon  this  subject  is  stated  to  be, 
that,  in  an  executed  contract,  where  there  has  been  a  gross  mis- 

1  Hitchcock    V.     Gicldings,     Daniel's  *  Hitchcock  v.  Giddings,  4  Price,  135. 

Exch.  R.  1.  5  Morss  v.  Elmendorf,  11  Paige,  277. 

-  Hitchcock  V.  Giddings,  4  Price,  135.  ''  Mahns  v.  Freeman,  2  Kee.  25. 

3  Allen  V.  Hammond,  11  Pet.  71.  'J  Graham  v.  Hendren,  5  Munf.  185. 


CHAP.    XXI.]  MISTAKE.  335 

take  ill  the  quantity  sold,  for  "  more  or  less,"  the  complaining 
party,  who  has  practised  no  fraud,  nor  any  culpable  negligence, 
nor  impaired  his  equity  in  any  other  way,  is  entitled  to  relief  in 
chancery.  And  his  condition  is  still  more  favorable,  where  the 
opposite  party  comes  into  chancery  for  a  specific  execution  ;  for 
then  he  must  show  that  he  has  a  clear  right  to  it,  equitably  and 
conscientiously ;  otherwise  he  will  be  left  to  his  legal  remedy. (a) 

16.  Although,  as  has  been  seen,  the  conditions  of  sale  pro- 
vide, that  any  error  or  misstatement  in  the  particulars  shall  not 
vitiate  the  sale,  but  be  made  the  subject  of  compensation  to  the 
vendor  or  purchaser,  as  the  case  may  be ;  this  condition  will  not 
apply  to  a  wilful  or  fraudulent  misstatement.  Thus,  where  an 
estate  thus  sold  was  described  as  about  one  mile  from  Horsham,  a 
borough  town,  when  in  fact  it  was  between  three  and  four  miles ; 
in  an  action  to  recover  the  deposit,  Lord  Ellenborough  remarked, 
that  the  clause  in  question  was  designed  to  meet  unintentional 
errors ;  not  to  compel  the  purchaser  to  complete  the  contract,  if 
designedly  misled  ;  and  left  this  question  to  the  jury ;  who  found 
a  verdict  for  the  plaintiff.^ 

17.  The  vendor  as  well  as  the  vendee  may  claim  relief  on  the 
ground  of  mistake.  This  class  of  cases  usually  arises  from  an 
excess  in  the  quantity  of  land  claimed,  over  the  quantity  said  to  be 
contracted  for  ;  and  includes  the  twofold  question,  whether  the 
vendee  is  bound  to  take  the  surplus,  and  whether  he  has  a  right  to 
demand  it  with  or  without  extra  compensation. 

17  a.  If  lands  be  sold  by  metes  and  bounds  ;  and  the  vendor 
covenant  to  warrant  the  title  ;  he  is  bound  to  include,  in  a  convey- 
ance with  warranty,  and,  in  case  of  eviction,  to  make  compensation 
for,  all  the  lands  within  those  bounds,  which  he  held  and  claimed 
as  his  own  at  the  time  of  sale,  and  showed  to  the  purchaser  as  part 
of  the  lands  sold ;  notwithstanding  his  title  thereto  may  be  defec- 
tive. But  not  lands  which  were  not  thus  held  and  claimed,  nor 
thus  shown  ;  although  his  title-papers  may  comprehend  them.^ 

18.  When  a  tract  is  sold  upon  a  conjectural  estimate  of  the 
quantity,  for  a  gross  sum,  and  the  variance  is  not  very  extraordi- 
nary, showing  that  it  could  not  have  been  contemplated  ;  there  can 
be  no  relief.     Thus  it  is  held,  that  a  surplus  of  forty  or  fifty  acres, 

1  Norfolk  V.  Worthy,  1  Camp.  337.  Innis  v.  M'Crummin,  12  Mart.  425;  Mor- 

2  Beverley  v.  Lawson,  3  Munf.  317 ;    ris  v.  Emmett,  9  Paige,  168, 

(a)  Ub.  sup. 


336  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.   XXI. 

in  a  tract  of  one  thousand,  would  not  justify  a  decree  for  the  value 
of  the  surplus.^  So  if  one,  who  has  obtained  a  survey  upon  a  land 
warrant  for  two  thousand  acres,  sell  and  transfer  it  for  valuable 
consideration,  and  assign  the  plat  and  certificate  to  the  purchaser, 
whereupon  he  obtains  a  patent  in  his  own  name  ;  and  if,  upon  a 
resurvey,  it  appear  that  the  grant  conveys  two  thousand  seven 
hundred  acres :  the  vendor  cannot  in  equity  support  a  claim  for 
the  surplus  against  the  vendee.^  So  where  A.  purchased  of  B.  one 
hundred  and  sixty-five  acres  of  land,  but  obtained  from  B.  an  obli- 
gation to  convey  all  his  right  in  the  tract,  that  right  being  supposed 
to  be  only  one  hundred  and  sixty-five  acres,  but  which  turned  out 
to  be  more  ;  equity  will  not  enforce  the  claim  for  the  surplus.^  So 
in  case  of  a  sale  of  a  tract  of  land,  described,  in  a  covenant  for  a 
conveyance,  by  its  boundaries,  and  as  containing  four  hundred 
acres,  for  $6,000  ;  it  really  contained  four  hundred  and  ninety 
acres  ;  and  the  vendee  files  his  bill  for  a  conveyance  of  the  whole 
for  $6,000.  The  vendor  insists,  that  the  sale  was  in  fact  by  the 
acre,  at  $15,  the  parties  being  under  a  mistake  as  to  the  quantity, 
which,  from  a  family  tradition,  had  been  called  four  hundred 
acres  ;  and  that  he  had  a  right  to  retain  the  surplus,  unless  he  was 
paid  for  it.     Decree  for  the  plaintiff.^ 

18  a.  But  it  is  held,  that,  in  general,  whenever  it  does  not  clearly 
appear,  that  land  was  sold  by  the  tract,  and  not  by  the  acre,  the 
vendee  ought  to  be  responsible  for  the  value  of  the  surplus  land ; 
which  value  is  ordinarily  to  be  estimated  by  the  average  value,  per 
acre,  of  the  whole  purchase.^  Thus  a  sale  of  a  farm  "  containing 
160  acres,  more  or  less,"  particularly  described  in  the  bond  for  a 
conveyance,  for  the  consideration  of  $6,400,  "  being  at  the  rate  of 
$40  per  acre,"  —  as  the  bond  recites,  —  was  held  to  be  a  sale  by 
the  acre,  and  not  in  gross,  and  the  purchaser  was  held  liable  to 
pay  for  a  surplus  of  eleven  and  a  half  acres  contained  in  the 
tract,  and  not  to  have  the  right  to  surrender  the  surplus  to  his 
vendor.® 

19.  Where,  upon  a  sale  of  land  by  auction,  the  advertisement 
described  the  tract  as  containing  three  hundred  acres ;  and,  on  the 
day  of  sale,  doubts  being  expressed  as  to  the  quantity,  the  vendor 

1  Clark  V.  Bell,  4  Dana,  115.  5  Hundley  v.  Lyons,  5  Munf.  842.    See 

2  Vowles  V.  Craig,  8  Cranch,  371.  Nelson  v.  Matthews,  2  H.  &  M.  178. 

3  Smith  V.  Smith,  4  Bibb,  81.  ^  Hutchings  v.  Moore,  4  Met.  (Ky.), 

4  Harrison  v.  Talbot,  2  Dana,  258.  110. 


CHAP.    XXI.]  MISTAKE.  337 

said  "  lie  would  sell  it  at  three  lunidred  acres,  more  or  less,  and 
he  would  sell  it  by  the  acre,  and  it  should  be  measured ; "  and  it 
was  accordingly  cried  and  sold  at  so  much  per  acre  :  held,  the 
vendee  was  bound  to  take  it,  although  a  subsequent  survey  showed 
an  excess  of  forty-five  acres.  Also,  that,  if  the  vendee  refused  to 
carry  the  same  into  execution,  and  the  vendor  resold  at  a  less  price, 
the  vendee  would  be  liable  for  the  loss.  If  the  vendor  acted  Iwmt 
fide,  and  with  reasonable  care,  the  measure  of  damages  is  the  diifer- 
ence  of  price  on  the  resale. ^  On  the  other  hand,  if  A.  contract  to 
convey  to  B.  one  hundred  acres  of  land,  adjoining  C,  and  make  a 
deed,  according  to  a  mistaken  survey  furnished  by  a  surveyor, 
calling  for  one  hundred  acres  ;  and  afterwards  the  tract  is  ascer- 
tained to  contain  one  hundred  and  nineteen  acres :  A.  is  entitled 
to  a  reconveyance  of  the  surplus.^  Though  a  vendee,  required  to 
surrender  a  surplus,  may  elect  from  which  end  or  side  of  the  tract 
it  shall  be  taken. ^ 

20.  Where  part  of  a  tract  of  land  is  lost,  but  there  is  a  surplus 
in  the  tract,  for  which  the  vendor  is  entitled  to  pay  ;  and,  the  value 
of  the  surplus  exceeding  the  loss,  the  latter  is  deducted,  and  a  de- 
cree rendered  for  the  balance :  it  should  so  appear  by  the  decree  ; 
which  should  also  release  the  vendor  from  his  obligation  to  convey 
the  lost  land.'^ 

21.  A  vendee  may  ivaive  his  right  to  rescind  on  the  ground  of 
mistake.  Thus  a  sale  was  at  first  made  of  a  farm,  for  so  much  per 
acre,  to  be  ascertained  by  measurement.  Afterwards,  the  parties 
agreed  to  waive  any  measurement,  and  the  vendee  took  the  farm 
at  the  gross  sum  of  ^2,500,  supposing  it  to  contain  fifty  acres,  from 
the  representation  of  the  vendor ;  which  the  vendor  himself  believed, 
to  be  true.  In  the  deeds,  the  quantity  was  stated  to  be  forty-seven 
and  a  half  acres,  more  or  less.  The  real  quantity  was  forty  acres 
and  a  half.  Held,  the  vendee  was  not  entitled  to  relief  in  equity, 
each  party  having  been  well  acquainted  with  the  local  boundaries 
of  the  farm.^ 

22.  But  equity  will  not  hold  the  rights  of  a  party  to  be  waived, 
except  by  unequivocal  acts  or  declarations  of  such  waiver.  Thus, 
in  a  case  of  mistake  by  conveying  to  a  husband  and  wife,  instead  of 

1  Ashcoin  V.  Smith,  2  Penn.  211.  Whaley  v.  Elliott's,  &c.  1  A.  K.  Mursh. 

2  Gilmore  v.  Morgan,  2  J.  J.  Marsh.     254. 

65.  4  Clark  v.  Bell,  4  Dana,  115. 

3  Harrison  V.  Talbot,  2  Dana,  266.    See         ^  Stebbins  v.  Eddy,  4  Mas.  414. 

22 


338  LAW   OF   VENDOES    AND    PURCHASERS.  [CHAP.   XXI. 

conveying  to  the  wife  alone ;  upon  a  bill  in  equity  brought  after 
the  death  of  the  wife  by  her  heirs,  it  appeared,  that  more  than 
twenty  years  had  elapsed  between  the  execution  of  the  deeds  and 
the  commencement  of  the  suit ;  during  which  time,  the  defendant 
was  in  possession,  and  his  wife  never  called  upon  him  to  rectify  the 
mistake,  or  complained  of  it  to  him  ;  but  also,  that  he  was  unques- 
tionably entitled  to  the  use  of  the  property,  that  there  was  nothing 
in  the  manner  of  that  use  adapted  to  awaken  suspicion  of  mistake, 
and  that  she  had  no  knowledge  of  the  mistake,  until  about  a  year 
and  a  half  before  her  death,  and,  when  it  was  communicated  to  her, 
was  troubled  about  it.  Held,  the  lapse  of  time  did  not  affect  the 
rights  of  the  plaintiffs.^  So  the  plaintiff  purchased  at  auction  a 
house,  of  which  he  did  not  know  the  position,  by  the  description  in 
the  particulars  of  sale,  of  No.  58  on  the  north  side  of  Pall  Mall, 
opposite  Marlborough  House.  The  same  particulars  stated  the 
amount  of  the  rent,  rates,  and  taxes  of  the  house.  The  house  was 
not  in  Pall  Mall,  but  behind  No.  57  Pall  Mall,  and  only  connected 
with  Pall  Mall  by  a  narrow  passage  leading  through  the  ground- 
floor  of  No.  57,  and  communicating  with  the  street  by  a  door 
numbered  58.  He  did  not  make  any  objection  to  this,  but,  upon 
discovering  that  the  cellars  of  No.  57  extended  underneath  this 
passage,  and  under  a  small  part  of  No.  58,  and  that  the  floor  of 
the  passage  was  not  very  strong,  he  filed  a  bill  to  set  aside  the 
contract,  and  for  the  return  of  the  deposit,  with  interest.  Held, 
he  was  entitled  to  this  relief,  notwithstanding  that  by  his  conduct 
he  had  waived  his  right  to  object  to  the  position  of  the  house,  upon 
the  ground  that  the  passage  was  not  such  an  access  to  the  house  as 
he  was  entitled  to  expect,  from  the  description.^ 

23.  The  ordinary  course,  as  has  been  seen,  for  correcting  mis- 
takes by  the  interposition  of  a  Court  of  Equity,  is  to  rescind  the 
sale  in  whole  or  in  part,  or  decree  restitvition  of  the  purchase- 
money.  The  same  object  is  also  accomplished,  by  reforming  the 
agreement  or  the  conveyance  in  which  a  mistake  is  alleged  and 
proved  to  have  been  made. (a)     The  general  doctrine  is,  that  a 

1  Stedwell  v.  Anderson,  21  Conn.  139.  2  Stanton  v.  Tattersall,  21  Eng.  Law  & 

Eq.  154. 

(a)  The  general  power  of  reforming  Gen.  St8.)     Babcock  v.  Smith,  22  Pick. 

contracts,  as  a  distinct  branch  of  equity  69.     See  Bellows  v.  Stone,  14  N.H.  175. 

jurisdiction,  has  been  held  not  to  be  con-  Where  neither  fraud,  mistake,  nor  surprise 

ferred  on  the  Supreme  Court  of  Massa-  is  proved,  a  Court  of  Equity  will  not  in- 

chusetts.     (See  Statutes,  1847,  ch.  214;  terfere  to  reform  an  agreement  or  deed 


CHAP.    XXI.]  MISTAKE.  339 

Court  of  Chancery  will  correct  a  written  instrument,  where  through 
mistake  it  was  written  differently  from  the  intention  of  the  parties.^ 
And  such  relief  is  not  effected  by  erasures  or  interlineations  of  the 
instrument,  but  by  injunctions,  and  orders  for  necessary  and  proper 
releases.^  Thus  it  was  agreed  by  a  father  and  his  children,  three 
sons  and  a  daughter,  that  referees  should  divide  his  real  estate 
into  two  parts,  assigning  one  part  to  two  of  the  brothers,  and  the 
other  part  to  the  other  brother  and  the  sister.  This  being  done, 
the  brother  and  sister  agreed,  with  the  assent  of  the  father,  that  the 
referees  should  divide  their  portion  between  the  two,  which  was 
done ;  but,  there  being  no  buildings  on  the  land  assigned  to  the 
sister,  they  assigned  to  her  an  undivided  half  of  the  buildings. 
The  father  then  caused  deeds  to  be  written  by  one  of  the  referees, 
that  to  the  sister  being  intended  and  supposed  to  be  a  deed  of  the 
part  assigned  to  her  by  the  last  award.  They  were  executed  by 
the  father,  and  delivered  to  A.,  to  be  delivered  to  the  grantees  on 
his  death.  By  mistake,  the  deed  to  the  sister  did  not  include  the 
undivided  half  of  the  buildings.  Held,  equity  would  decree,  that 
deeds  of  release  should  be  executed  by  the  respondents  to  the  ora- 
tors (the  sister  and  her  husband),  of  one  undivided  lialf  of  the 
buildings.^  So,  four  sisters  being  the  joint  owners  of  land,  they 
and  their  husbands  mutually  agreed,  that  it  should  be  assigned  to 
them  in  severalty.  One  of  the  husbands  "undertook  to  prepare 
deeds  for  that  purpose ;  and  by  mistake,  misapprehension,  and 
ignorance,  the  name  of  each  husband,  as  a  grantee  with  his  wife, 
was  inserted.  There  was  no  intention,  in  any  of  them,  to  convey 
to  the  husbands  a  greater  interest  than  they  would  be  entitled  to, 
as  husbands  ;  but,  under  the  deeds,  each  husband  took  an  estate  in 
fee.  One  of  the  sisters  died,  without  having  had  issue.  Upon  a 
bill  in  chancery,  brought  by  her  heirs  at  law,  against  her  husband, 
who  was  in  possession,  claiming  title  under  one  of  the  deeds ;  held, 
as  the  defendant  was  concerned  in  making  and  carrying  out  the 
mistake,  as  he  had  paid  nothing  for  the  land,  and  as  he  was  now 
holding  it  contrary  to  the  intention  and  agreement  of  the  parties, 

1  GoodeU    V.   Field,    15    Verm.   576  ;         2  Smith  v.  Greeley,  14  N.H.  378. 
Ruhling  V.  Hackett,  1  Neva.  3G0.      See         ^  Craig  v.  Kittredge,  3  Foster,  231. 
Cochrane  v.  Willis,  Law  Rep.  (Eng.)  Eq. 
Jan.  1866,  p.  57. 

which  is  such  as  the  parties  designed  it  to    with  the  terms  of  the  deed.     McElderry 
be.     A  conventional  trust  cannot  be  set  up    v.  Shipley,  2  Md.  25. 
on  a  special  parol  agreement,  inconsistent 


340  LAW    OF   VENDORS   AND    PURCHASERS.  [CHAP.    XXI. 

the  plaintiffs  were  entitled  to  a  decree  in  their  favor,  establishing 
the  title  in  them.^  So  equity  will  rectify  an  executed  sale  of  real 
property,  on  the  ground  of  mistake  on  the  part  of  the  vendor  alone. 
As  where  the  plan  on  the  deed  included  land  which  he  did  not  in- 
tend to  include.  But  the  purchaser  may  have  his  option  to  annul  the 
contract ;  and  no  costs  were  allowed,  both  parties  appearing  to  have 
been  in  fault.^  So  where  a  purchaser  of  lands,  without  an  exception 
in  his  deed,  but  with  notice  of  the  rights  of  another,  who  held  under 
an  unrecorded  lease,  to  the  use  of  a  spring  situated  on  the  land, 
destroyed  the  spring ;  held,  the  lessee  was  entitled  to  his  rights 
under«the  lease,  and  the  deed  should  be  reformed  accordingly.^ 

24.  But  there  are  numerous  cases  where  equity  declines  thus  to 
interpose.  Thus  where  land,  sold  by  A.  to  C.  under  a  mistaken 
description,  was  afterward  conveyed  by  A.  to  B.,by  a  proper  deed, 
for  a  valuable  consideration,  and  without  notice  of  the  mistake ; 
held,  a  bill  to  reform  the  deed  to  C.  would  not  lie  against 
either  A.  or  B. ;  though  the  former  should  be  allowed  no  costs, 
as  he  had  received  payment  twice  for  a  portion  of  the  land.^  So 
where  a  deed  is  drawn  strictly  in  accordance  with  the  intention  of 
parties,  and,  by  a  mistake  in  judgment,  it  will  not  effect  the  desired 
object,  the  Court  will  not  interfere.^  So  where  a  party  files  a  bill 
in  equity  to  have  a  title-bond  corrected,  by  inserting  therein  a 
parcel  of  land  which  was  omitted  by  the  mistake  or  fraud  of  the 
vendor,  and  it  appears  that  another  parcel  was  inserted  instead,  by 
mistake ;  he  is  not  entitled,  under  his  bill,  to  a  reformation  of  the 
bond.^  So  where,  by  a  mistake  of  boundaries  in  a  deed,  more  land 
is  included  than  was  intended,  equity  will  not  reform  the  bounda- 
ries, after  the  land  has  passed  to  a  hond-fide  purchaser  without 
notice.'^ 

25.  In  a  bill  to  reform  an  agreement,  on  account  of  mutual  mis- 
apprehensions, the  Court,  although  they  cannot  reform  the  agree- 
ment, will  afford  relief  by  causing  it  to  be  set  aside. ^ 

26.  A  bill  in  equity  to  reform  a  conveyance,  on  the  ground  of 
accident  or  mistake,  will  be  held  defective  on  demurrer,  unless  the 
persons  under  whom  tlie  defendant  claims  by  deeds  of  warranty, 


1  Stedwell  v.  Anderson,  21  Conn.  189.         5  Durant  v.  Bacot,  2  Beasl.  201. 
-  Harris  v.  Pepperell,  Law  Rep.  (Eng.)  ^  Easter  wood  ?■.  Linton,  36  Ala.  175. 

Eq.  Jan.  1868,  p.  1.  7  "Whitman  v.  Weston,  30  Maine,  285. 

3  Herbert  v.  Odiin,  40  N.H.  267.  See  Cliiner  v.  Honey,  15  Mich.  18. 

4  Sealey  v.  Brumble,  6  Jones,  Eq.  295.         8  Bellows  v.  Stone,  14  N.H.  175. 


CHAP.   XXI.]  MISTAKE.  341 

subsequent  to  the  alleged  mistake  or  accident,  arc  made  parties ; 
and  unless  an  allegation  is  contained  in  the  l)ill,  that  the  grantees 
in  such  deeds  purchased  with  notice  of  the  mistake  or  accident.^ 

27.  A  bill  to  correct  a  mistake  in  a  written  agreement  must  not 
only  state  the  agreement  as  it  ought  to  have  been  reduced  to  writ- 
ing, but  also  the  substance  of  the  written  agreement  itself.  And 
the  party  alleging  a  mistake  holds  the  affirmative,  and  must  satisfy 
the  Court  beyond  all  reasonable  doubt,  that  the  alleged  agreement 
was  made,  and  that  a  mistake  has  occurred  in  reducing  'it  to 
writing.^ 

28.  It  is  held  that  a  mistake  in  a  written  instrument  may  be 
shown  by  parol  proof.^  Thus  where,  by  ignorance  or  mistake,  a 
deed  intended  for  the  benefit  of  a  woman  for  life,  remainder  to  her 
children,  was  made  to  her  and  her  heirs ;  the  deed  was  thus 
corrected.*  And  this,  as  well  on  the  part  of  the  plaintiff  wlio  seeks 
relief  or  a  reformation  of  the  writing,  and  to  have  it  afterwards 
enforced,  as  on  the  part  of  a  defendant  who  resists  its  perform- 
ance.^ So,  though  denied  in  the  answer.^  But  not  a  mistake  in 
law? 

29.  Evidence  offered  in  equity  to  reform  a  deed  need  not  be 
positive,  in  the  strictest  sense  of  that  term  ;  ^  but  it  must  be  clear, 
strong,  and  satisfactory,  that  the  deed  does  not  conform  to  the  oral 
contract  as  understood  by  either  party .^  Thus,  it  seems,  mere 
confessions  are  insufficient.^*^ 

29  a.  It  is  no  defence  to  a  suit  for  the  price  of  land,  that  the 
purchaser  has  not  got  all  the  land  he  bought,  if  he  has  got  all  that 
his  deed  calls  for.  And  par^  evidence  is  not  admissible  to  vary 
the  deed ;  and  the  mistake  in  it,  if  one  exists,  can  be  corrected 
only  in  equity.^^  And,  in  a  late  case,  parol  evidence  is  held  inad- 
missible to  reform  a  deed,  unless  in  case  of  fraud,  mistake,  or  a 
latent  ambiguity ;  as  by  the  use  of  local  terms  and  terms  of  art.^^ 

1  Davis  V.  Rogers,  33  Maine,  222.  9  Beard  v.  Hubble,  9  Gill,  420 ;  Leas 

2  Coles  V.  Brown,  10  Paige,  526.  v.  Eidson,  9  Gratt.  277 ;  Shay  v.  Pettes, 

3  Rosevelt  v.  Fulton,  2  Cow.  129  ;  85  111.  360 ;  Sawyer  v.  Hovey,  3  Allen, 
Beard  v.  Hubble,  9  Gill,  420.  331.     See  White  v.  Williams,  48  Barb. ; 

4  Clayton  v.  Freet,  10  Ohio  (n.s.)  544.  Law  Reg.  Jan.  1868,  p.  187. 

5  Bellows  V.  Stone,  14  N.H.  175.  10  Gillespie  v.  Moon,  2  Johns.  Ch.  585. 
«  Gillespie  v.  Moon,  2  Johns.  Ch.  585.           n  Wear  v.  Parish,  26  111.  240. 

■J  Wheaton  v.  Wheaton,  9  Conn.  96.  12  Levering    v.   Buck,   &c.,   54  Penn. 

8  Greer    v.    Caldwell,   14    Geo.    207;     291. 
Goodell  V.  Field,  15  Verm.  576. 


342  LAW   OF   VENDORS   AND   PURCHASERS.        [CHAP.   XXII. 


CHAPTER  XXII. 


GROUNDS    OF   AVOIDING   A   SALE.  —  FRAUD. 

1.    Misrepresentation  avoids  a  sale.  of  rescinding;  acceptance  of  deed;   lapse  of 

3.     Whether  made   ignorautly   or  inten-    time,  &c. 
tionally;  express  or  implied.  14.     Part-performance  and  compensation. 

8.     Under  what  circumstances  the  vendee  16.    Parties;  principal  and  agent,  &c. 

is  bound  by  a  fraudulent  sale;  waiver;  mode  19.     Fraud  of  the  vendee. 

22.    Evidence,  damages,  &c. 

1.  It  has  been  seen  that  even  mistake  may  wholly  or  partially 
avoid  a  sale  and  purchase  of  real  property.  We  proceed  now  to 
consider  the  somewhat  analogous  subject  of  fraud ;  consisting 
either  in  positive  misrepresentation  or  wilful  concealment,  or  in 
circumstances  of  personal  incapacity,  or  terms  and  conditions  of 
sale,  from  which  a  fraudulent  purpose  may  be  inferred. 

1  a.  In  the  first  place,  actual  misrepresentation  of  the  seller 
avoids  the  sale.  Thus  misrepresentation,  though  in  a  slight  de- 
gree, is  an  objection  to  a  specific  performance.^  For  example,  as 
has  been  sometimes  held,  misrepresentation  of  the  value  of  an 
estate.^  And  when  fraudulent  representations  relate  to  the 
quantity  of  land  sold,  it  is  immaterial  whether  the  sale  is  in  gross, 
or  by  the  acre.^  So  articles  may  be  set  aside  for  fraud  and  imposi- 
tion.^ Thus  a  vendor  cannot  maintain  a  bill  for  specific  performance 
of  a  sale  at  auction,  where  the  vendee  was  induced  to  purchase  by 
his  fraudulent  contrivance  and  management.^  So  equity  will  re- 
scind a  sale  at  the  request  of  the  vendee,  and  restore  the  purchase- 
money,  in  case  of  false  representations  by  the  vendor,  relative  to 
his  title  ;  and  the  whole  conduct  of  the  vendor  may  be  inquired 
into  relative  to  the  matter.^  So  specific  performance  was  refused, 
even  on  the  ground  of  representations,  made  at  the  sale  by  the  ven- 
dor, of  improvements,  affecting  the  value  of  the  premises,  intended 
by  him,  which  were  not  carried  into  effect.^ 

1  Cadman  v.  Horner,  18  Ves.  10.  «  Baugh  v.  Price,  1  Wils.  820. 

2  Wall  V.  Stubbs,  1  Madd.  80.     But  5  Rodman  v.  Zilley,  1  Saxt.  320. 
see  §  7  a.  •>  Smith  v.  Kobertson,  23  Ala.  312. 

3  Thomas  v.  Beebe,  25N.Y.  (11  Smith)  •  Beaumont  v.  Dukes,  Jac.  Ch.  422. 
244. 


CHAP.    XXII.]  FRAUD.  343 

2.  The  party  who  alleges  misrepresentation  must  prove  it.^  And 
it  has  been  held,  that  it  is  not  every  representation  of  the  vendor 
in  regard  to  property  sold  that  will  amount  to  fraud,  be  it  ever  so 
exceptionable  in  point  of  morals.^  So,  also,  that  to  avoid  a  con- 
tract for  misrepresentation,  it  must  be  shown  that  the  other  party 
intended  a  deception,  and  was  successful  therein,  to  the  damage 
of  the  party  defrauded.^ 

3.  The  doctrine,  however,  seems  to  be  now  well  established, 
that  actual  misrepresentation  avoids  the  sale,  even  though  made 
through  ignorance  of  the  seller  himself.  It  is  said,  a  seller  is 
bound  to  act  with  the  utmost  good  faith,  and,  if  he  mislead  the 
purchaser  by  a  false  or  mistaken  statement  as  to  any  one  essential 
circumstance,  however  small,  the  sale  is  voidable.^  And  the  gen- 
eral principle  may  be  gathered  from  the  authorities,  that^  if  a  party 
innocently  and  by  mistake  misrepresent  a  material  fact,  affecting 
the  value  of  the  property,  upon  which  another  party  is  ignorantly 
induced  to  act ;  it  is  as  conclusive  a  ground  for  relief  in  equity  as 
a  wilful  and  false  assertion.^  Any  person  undertaking  to  describe 
is  bound  by  the  description,  whether  conusant  or  not.^  Hence  a 
misrepresentation  in  a  matter  of  substance,  affecting  the  value 
of  the  estate,  is  a  good  defence  to  a  suit  for  specific  performance, 
although  the  vendor,  as  well  as  the  vendee,  was  ignorant  of  its  un- 
truth. As  in  case  of  an  erroneous  statement,  that  land  in  a  dis- 
tant State  was  situated  in  a  particular  county,  in  which  the  pur- 
chaser desired  to  buy.'  So  wliere  a  purchaser  buys  on  faith  of  a 
false  representation  by  the  seller' touching  the  essence  of  the  con- 
tract, the  sale  will  be  set  aside  in  equity,  whether  the  misrepre- 
sentation were  the  result  of  fraud  or  mistake  ;  ^  as  in  case  of  a 
defect  in  the  title,  when  a  conveyance  has  been  executed  and 
accepted,  and  there  is  a  misrepresentation  of  a  material  fact, 
which  was  believed  and  acted  upon.^  So  a  trustee  was  charged  in 
respect  of  a  misrepresentation  to  a  purchaser ;  he  having  notice, 

1  Park  V.  Johnson,  Mass.  S.J.C.  Law  Dev.   Eq.    411  ;    Smith    v.    Babcock,    2 

Keg.  Jan.  1868,  p.  180.  Woodb.  &  M.  216  ;  Housh  v.  Richardson, 

'^  Yeates  v.  Prior,  6  Eng.  58.  3  Story,  659 ;    Lewis   v.  McLemore,    10 

3  Pratt  V.  Philbrook,  33  Maine,  17.  Yerg.  206.     See  Duckenfield   v.  Wliich- 

*  Doggett  V.  Emerson,  3  Story,  R.  659  ;  cott,  Cha.  Cas.  Pt.  2,  24. 

Rogers  i'.  Mitchell,  42  N.H.  158.  «  Calverley  v.  Williams,  1  Ves.  211. 

5  Waters   v.   Mattingly,  1  Bibb,  244 ;  7  Best  v.  Stow,  2  Sandf.  298. 

Shackleford  v.  Handley,  1  A.  K.  Marsh.  8  Doggett   v.   Emerson,    3    Story,   R. 

370;  Bibb  w.  Poather,  &c.  Pr.  Dec.  153;  659. 

Pile  V.  Shannon,  Hard.  55 ;   McFerrin  v.         9  Lanier  v.  Hill,  25  Ala.  554. 

Taylor,  3  Cranch,  270 ;  Woods  ;;.  Hall,  1 


344  LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXII. 

and  alleging  only  that  he  did  not  recollect  the  fact.^     So  where  a 
farm  is  sold  at  an  auction  sale,  not  held  upon  the  premises,  by  a 
description  contained  in  an  advertisement  of  the  sale ;  if  the  ma- 
terial representations  in  such  description,  as  to  the  character  and 
condition  of  the  property,  turn  out  to  be  false,  whether  by  fraud  or 
mistake,  the  contract  cannot  be  enforced.^     So  the  commissioners 
of  a  town,  in  selling  the  lots,  in  good  faith  but  untruly  represented, 
"  that  there  was  along  the  whole  extent  of  the  town  a  first-rate 
steamboat  landing  all  seasons  of  the  year  ;  that  the  landing  was  one 
of  the  safest  and  best  on  the  Mississippi ;  that  on  the  west  side  of 
the  river,  immediately  opposite  the  town,  there  was  more  elevated 
ground  than  was  to  be  found  on  that  side  of  the  river,  and  that 
the  nearest  and  best  road  could  be  made  from  that  point  to  Little 
Rock."     Held,  the  representations  were  material,  and  the  pur- 
chasers, having  bought  under  a  supposition  that  they  were  true, 
were  entitled  to  relief.^     And  in  case  of  a  bill,  originally  brought 
in  New  York,  to  rescind  a  contract  for  the  purchase  and  sale  of  land 
in  Virginia,  on  which  there  was  a  gold-mine,  alleging  fraudulent 
misrepresentations  as  to  the  mine,  and  other  arts  of  the  seller,  by 
which  the  purchaser  was  induced  to  buy  ;  in  rendering  a  decree 
for  the  plaintiff  the  Supreme  Court  of  the  United  States  remarked, 
in  substance,  as  follows :    It  is  an   ancient  and  well-established 
principle,  that  whenever  suppressio  veri  or  suggestio  falsi  occurs, 
and  more  especially  both  together,  they  afford  sufficient  ground  to 
set  aside  any  release  or  conveyance.     The  party  selling  property 
must  be  presumed  to  know  whether  the  representation  which  he 
makes  of  it  is  true  or  false.     If  he  knows  it  to  be  false,  that  is  fraud 
of  the  most  positive  kind  ;  but  if  he  does  not  know  it,  then  it  can 
only  be  from  gross  negligence ;  and,  in  contemplation  of  a  Court 
of  Equity,  a  representation  founded  on  a  mistake  resulting  from 
such  negligence  is  fraud.     The  purchaser  confides  in  it  upon  the 
assumption  that  the  owner  knows  his  own  property,  and  truly  rep- 
resents it.     And  it  is  immaterial  to  the  purchaser  whether  the 
misrepresentation  proceeded  from  mistake  or  fraud.     The  injury 
to  him  is  the  same,  whatever  may  have  been  the  motives  of  the 
seller.    The  misrepresentations  of  the  seller  of  property,  to  author- 
ize the  rescinding  a  contract  of  sale  by  a  Court  of  Equity,  must  be 
of  something  material,  constituting  an  inducement  or  motive  to 

1  Burrowes  v.  Locke,  10  Ves.  470.  ^  Lewis  v.  McLemore,  10  Yerg.  206. 

2  Hutcheon  v.  Johnson,  33  Barb.  392. 


CHAP.    XXII.]  FRAUD.  345 

purchase ;  and  by  which  he  has  been  misled  to  his  injury.  It 
must  be  in  something  in  which  the  one  party  places  a  known  trust 
and  confidence  in  the  other.  Whenever  a  sale  is  made  of  property 
not  present,  but  at  a  remote  distance,  which  the  seller  knows  the 
purchaser  has  not  seen,  but  which  he  buys  upon  the  representa- 
tion of  the  seller,  relying  on  its  truth,  then  the  representation  in 
effect  amounts  to  a  warranty ;  at  least  the  seller  is  bound  to  make 
good  the  representation.^ 

4.  Any  apparent  discrepancy  in  the  authorities  upon  this  subject 
may  be  to  some  extent  reconciled  by  the  consideration,  that, 
although  the  law  does  not  make  the  vendor  responsible  for  every 
unauthorized,  erroneous,  or  false  representation  made  to  the  ven- 
dee, even  though  it  may  have  been  injurious,  unless  also  fraudu- 
lent ;  yet,  where  one  has  made  a  representation  positively,  or  pro- 
fessing to  speak  as  of  his  own  knowledge,  without  having  any 
knowledge  on  the  subject,  the  intentional  falsehood  is  disclosed, 
and  the  intention  to  deceive  is  also  inferred.^ 

5.  Upon  the  ground  above  stated  it  has  been  held,  that,  on  a 
bill  filed  by  a  vendee  for  rescission  of  the  contract,  alleging  a  fraud- 
ulent misrepresentation  of  a  material  fact  by  the  vendor ;  if  the 
evidence  shows  an  honest  mistake  only,  the  intent  being  imma- 
terial, the  variance  is  not  fatal,  and  relief  will  be  granted.^ 

6.  Where,  in  a  treaty  for  the  sale  of  property,  the  vendor  makes 
material  misrepresentations,  even  though  through  mistake,  by 
which  the  purchaser,  having  no  knowledge  or  means  of  knowledge 
in  relation  thereto,  is  actually  deceived  to  his  injury ;  equity  will 
rescind  the  contract,  although  it  do  not  itself  contain  the  misrep- 
resentations.* So  misrepresentations  on  a  plat  of  lands,  produced 
at  the  time  and  place  of  a  public  sale,  are  good  grounds  for  rescis- 
sion. As  where  a  fine  stream  of  water  was  laid  down,  with  a  good 
mill-seat  on  it,  in  the  centre  of  a  tract  of  timber  land,  fit  only  for 
lumber;  and  which,  upon  examination,  turned  out  to  be  only  a 
dry  gully  three-fourths  of  the  year,  without  any  running  water  in  it. 
And  such  misrepresentation  may  be  given  in  evidence  against  a 
bond  given  for  the  consideration-money,  by  way  of  discount,  under 
the  terms  of  a  discount  act,  in  a  Court  of  Common  Law.^ 

7.  Upon  similar  grounds,  a  compr'omise  of  rights,  doubtful  in 

1  Smith  V.  Richards,  13  Pet.  26.  *  Hough   v.   Eicliardson,  3  Story,  R. 

2  Hammatt  v.  Emerson,  27  Maine,  308.     659. 

3  Lanier  v.  Hill,  25  Ala.  554.  5  The  State  v.  Gaillard,  2  Bay,  11. 


346  LAW   OF   VENDORS    AND   PURCHASERS.         [CHAP.    XXII. 

point  of  law,  but  founded  upon  a  misrepresentation  or  suppression 
of  facts  in  the  knowledge  of  one  of  the  parties  only,  cannot  be  sup- 
ported. Therefore  a  deed  of  compromise,  induced  by  the  opinion 
of  counsel,  upon  a  case  laid  before  him,  which  was  prepared  by  the 
defendant's  agent,  but  mistaking  the  tenures  under  which  the  es- 
tates, the  subject  of  the  compromise,  were  held,  was  set  aside.^ 
So  where  one  having  a  clear  title  to  12  pounds  for  rent,  and 
claiming  the  property  of  the  land,  is  induced  by  the  representations 
of  two  professional  persons  that  he  had  no  right  to  either  rent  or 
land,  to  agree  to  accept  .£10  in  full  for  rent  and  land;  the  Court 
will  not  entertain  a  bill  for  specific  performance.^  So  if  one  hav- 
ing the  fee-simple  be  induced  by  fraud  to  accept  a  chattel  interest, 
equity  will  control  the  setting-up  of  the  lease.^ 

7  a.  But  it  is  held,  that  no  action  for  deceit  in  the  sale  of  land 
can  be  maintained,  for  misrepresentations  as  to  the  price  which  the 
vendor  paid  for  it.'*(a) 

8.  And  the  important  qualifications  to  the  general  doctrine  upon 
this  subject  require  to  be  stated,  that,  while  chancery  will  grant 
relief  where  the  vendor  of  real  estate,  by  false  and  fraudulent  rep- 
resentations respecting  its  quality,  induces  another  to  purchase  it, 
if  the  purchaser  is  not  in  a  situation  to  discern  the  defect  by  ordi- 
nary diligence,  provided  there  is  no  adequate  remedy  at  law  ;  ^  yet, 
where  a  purchaser  relies  upon  his  own  judgment,  uninfluenced  by 
any  misrepresentations,  and  has  full  means  of  knowledge  within 
his  reach,  equity  will  not  relieve  him.^  So  to  authorize  a  vendee 
to  refuse  to  comply  with  the  terms  of  sale,  on  account  of  a  misrep- 
resentation made  by  the  vendor,  the  misrepresentation  must  be  in 
a  matter  important  to  the  purchaser's  interest,  by  which  he  is  actu- 
ally misled.  And  if  he  knows  the  representation  is  false,  it  can- 
not be  said  to  influence  his  conduct,  and  he  has  no  right  to  com- 
plain of  any  one  but  himself."     Thus  where,  under  an  agreement 

1  Leonard  v.  Leonard,  2  Ball  &  Beatt.  *  Henimer  v.  Cooper,  8  Allen,  334. 
171.  See§  L 

2  Stanley  v.  Robinson,  1  Russ.  &  Myl.  5  Sherwood  v.  Salmon,  5  Day,  439. 
527.  6  Hough  V.   Richardson,  3   Story,  R. 

3  Saunders  v.   Annesley,   2    Sclio.  &  659. 

Lef.  101.  ^  Ely  v.  Stewart,  2  Md.  408. 

(a)  Where  the  defendant  sold  to  the  greater  sum  ($85,000),  and  received  pay- 

plaintifF  shares    in    an    association,   and  ment  therefor  from  the  association :   the 

promised  that  he  would  put  into  the  asso-  plaintiff  ^yas   held   not  hound  to  receive 

ciation   two   farms    at    the    cost    thereof  the  shares,  .and  entitled  to  recover  back 

($16,000) ;  but,  before  the  shares  were  de-  his  payments.     Seaman  v.  Low,  4  Bosw. 

livered,  contributed  the  farms  at  a  much  337.     See  p.  342. 


CHAP.   XXII.]  FRAUD.  347 

for  the  sale  of  land,  the  vendor  reserved  the  richt  to  have  a  way 
over  the  premises  declared  a  public  road  at  any  time  ]n-ior  to  the 
execution  of  his  deed  ;  held,  in  an  action  to  recover  the  ])rice, 
the  fact  that  the  vendor,  before  delivery  of  the  deed,  represented 
to  the  vendee  that  nothing  had  been  done  about  the  road,  -when  at 
the  time  it  had  already  been  laid  out  as  a  highway,  was  immaterial, 
and  parol  evidence  of  the  making  of  such  statement  was  incompe- 
tent.^ So  a  sale  cannot  be  objected  to  for  a  misrepresentation  that 
the  land  is  fertile  and  improvable,  when  part  of  it  has  been  al)an- 
doned  as  useless  ;  unless  in  extreme  cases,  as  where  a  considerable 
part  is  under  water  or  otherwise  irreclaimable.  Nor  for  the  rep- 
resentation that,  in  course  of  time,  it  may  be  covered  with  tvarp^ 
and  considerably  improved  at  a  moderate  cost.^  So  a  sale,  though 
founded  on  the  misrepresentations  of  the  seller,  cannot  be  for  that 
cause  wholly  rescinded,  if,  prior  to  the  completion  of  the  sale,  the 
purchaser  had  become  acquainted  with  the  whole  facts,  and  yet 
confirmed  the  bargain.^  So  the  misrepresentation,  to  affect  the 
validity  of  the  contract,  must  relate  to  some  matter  of  inducement 
to  the  making  of  it,  in  which,  from  the  relative  position  of  the  par- 
ties, and  their  means  of  information,  the  one  must  necessarily  be 
presumed  to  act  on  the  faith  and  trust  which  he  reposes  in  the  rep- 
resentations of  the  other,  on  account  of  his  superior  information 
and  knowledge  in  regard  to  the  subject  of  the  contract.'^  Thus, 
where  the  parties  are  present  at  the  property  sold,  the  assertions 
of  the  vendor  as  to  its  value  and  prospective  profits,  where  there  is 
no  misrepresentation  of  facts,  afford  no  ground  for  setting  aside 
the  contract.^  So  the  parties  to  a  sale  went  upon  the  land,  saw 
the  location  of  the  various  parcels,  and  had  plats  of  the  land  before 
them,  but  the  vendor  represented  that  one  parcel  was  situated 
within  certain  lines  of  a  survey,  which  was  not  so  situated.  Held, 
that  the  question,  whether  that  representation  was  fraudulent  or 
not,  should  be  left  to  the  jury,  and  that  the  vendor  must  use  means 
which  would  impose  upon  a  person  of  ordinary  prudence,  to  con- 
stitute fraud,  and  the  vendee  must  place  confidence  therein  and 
receive  damage.^  So,  where  A.  gave  a  certificate,  that  certain 
lands,  which  he  had  "  partially  explored,"  contained,  "  as  far  as 

1  Castleman  v.  Griffin,  13  Wis.  585.  5  Hutchinson  v.  Brown,  1  Clarke,  408 ; 

'^  Dimmock     v.     Hallett,    Law     Kep.  Vigers  v.  Pike,  8  Cla.  &  Fin.  650,  651 ; 

(Eng.)  Eq.  Jan.,  1867,  pp.  26,  27.  Gritrgs  v.  Woodruff,  14  Ala.  'J. 

3  Pratt  V.  Philltrook,  33  Maine,  17.  «  Griffith  v.  Eby,  12  Mis.  517. 

4  Yeates  v.  Prior,  6  Eng.  58. 


348  LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXII. 

my  knowledge  extends,"  a  certain  average  of  timber,  and  it  ap- 
peared that  the  purchasers,  to  whom  it  was  given,  had  as  full 
means  of  knowledge  as  A. ;  held,  they  were  not  entitled  to  place 
implicit  reliance  thereon,  and  make  it  the  basis  of  their  contract, 
but  should  have  investigated  the  grounds  of  the  opinion,  and  the 
extent  of  the  exploration. ^  So  A.  sold  to  B.,  who  was  just  moving 
into  the  State,  a  tract  of  land  on  a  bank  of  the  Mississippi,  repre- 
senting it  to  be  above  overflow,  and  also  that  there  were  public 
lands  back  of  and  adjacent  to  it,  subject  to  entry  with  dona- 
tion claims,  held  by  B.,  which  were  likewise  above  overflow, 
when  in  fact  a  larger  portion  of  botli  the  front  and  back  lands 
were  subject  to  ordinary  overflow.  Held,  such  misrepresentation^ 
were  fraudulent,  and  constituted  sufficient  grounds  for  rescinding 
the  contract  ;  but,  B.  having  had  an  opportunity  of  ascertaining  the 
true  character  of  the  lands,  in  a  short  time  after  making  the  con- 
tract, and  having  failed  for  some  two  years  of  a  determination  to 
abandon  the  purchase,  that  he  waived  the  fraud  and  confirmed  the 
contract.^  So  where  a  purchaser  of  shares  in  a  mine  had  not  re- 
lied upon  the  representations  of  the  vendor  as  to  the  value  of  the 
mine,  but  had  himself  inspected  it ;  held,  as  there  was  no  proof  that 
representations  were  untrue,  which,  if  taken  as  true,  would  have 
added  to  the  value,  nor  that  these  representations  were  not  merely 
conjectural,  the  plaintiff  was  not  entitled  to  relief  in  equity,  but 
his  bill  must  be  dismissed,  without  prejudice  to  any  action  lie 
might  bring.3  So  A.  agreed  with  P.,  in  consideration  of  .£165,000, 
to  grant  to  P.  a  lease  of  certain  mines,  as  trustee  for  a  joint-stock 
company,  which  P.  undertook  to  form ;  the  consideration  to  be 
paid  partly  in  shares  in  the  company,  partly  in  money  to  be  raised 
by  calls  on  the  remaining  shares.  The  lease  was  afterwards  exe- 
cuted ;  and  the  company,  having  been  formed,  with  power  to  sue 
and  be  sued  by  one  of  the  directors,  entered  into  possession  and 
worked  the  mines,  and  paid  part  of  the  purchase-money.  Upon 
A.'s  death.  P.,  his  executor,  filed  a  bill  against  V.,  then  managing 
director  of  the  company,  for  an  account  and  payment  of  what  re- 
mained due  to  A.  of  the  purchase-money.  Y.  answered,  and  then 
filed  a  cross-bill  on  behalf  of  the  company,  setting  forth  various 
matters  as  evidence  of  misrepresentations,  concealment,  and  other 
frauds  practised  by  A.  and  P.  on  the  company,  and  prayed  that 

1  Hough  V.  Richardson,  3  Story,  R.  657.  ^  Jennings  v.  Broughton,  27  Eng.  Law. 

2  Yeates  v.  Prior,  6  Eng.  58.  &  Eq.  397. 


CHAP.    XXII.]  FRAUD.  349 

the  consideration  might  be  declared  exorbitant  and  fraudulent,  and 
that  the  company  was  entitled  to  a  valid  lease  of  the  mines  at  their 
true  reduced  value  ;  or  that  the  agreement  might  1)0  declared  fraud- 
ulent and  void,  and  the  company  discharged  therefrom,  and  enti- 
tled to  a  lien  on  A.'s  estates  for  the  i)ayments  made  to  him.  Held, 
1st,  That  the  company  were  not  entitled  to  any  relief  from  the 
agreement,  by  reason  of  acts  and  misrepresentations  which  pro- 
ceeded from  themselves,  or  were  adopted  by  them,  and  acquiesced 
in  after  full  knowledge,  while  they  continued  to  work  and  exhaust 
the  mines.  2d,  That  as  the  executed  contract  was  not  to  be  set 
aside,  A.'s  executor  was  entitled,  as  matter  of  course,  to  the 
account  and  payment  prayed  by  his  bilL^(a) 

9.  But  where  a  purchaser  of  timber  land  seeks  to  rescind  the 
contract  for  fraud,  on  the  ground  of  falsehood  as  to  the  quantity 
of  timber  on  the  township  ;  although  he  makes  an  examination  of 
the  land  before  the  purchase,  still,  if  he  confides  as  to  the  details 
in  the  false  statements  of  the  person  negotiating  witli  liim,  and  his 
agents,  he  is  not  precluded  from  rescinding  tlie  sale ;  more  espe- 
cially if  there  was  falsehood  as  to  other  material  matters  in  the  trade, 
not  offered  to  be  examined.^ 

10.  A  sale  procured  by  fraud  and  misrepresentation  of  the  ven- 
dee is  not  absolutely  void,  but  only  voidable,  at  the  option  of  the 
vendor,  which  must  be  exercised  as  soon  as  the  fraud  is  discov- 
ered, or  in  reasonable  time  thereafter.^  Thus  a  vendee  cannot 
rescind  the  sale  for  fraud,  after  taking  possession,  and  after  the 
expiration  of  ten  years  from  the  time  of  sale,  and  five  years  from 
discovery  of  the  fraud."*  So  upon  a  bill  in  equity  to  rescind  the 
sale  for  fraud,  and  recover  the  purchase-money,  he  must  show  a 
surrender  of  the  property,  or  an  offer  to  surrender  it,  and  tliat  the 
vendor  can  be  placed  m  statu  quo.  It  is  not  sufficient  to  allege 
that  he  abandoned  and  yielded  tlie  possession  of  the  land.^  So, 
he  must  restore,  or  offer  to  restore,  whatever  he  has  received  under 

1  Vigers  v.  Pike,  8  Clark  &  Fin.  562.  3  12  Barb.  G41. 

2  Tuthill  V.  Babcock,  2  Woodb.  &  M.  *  Davis  v.  Tarwater,  15  Ark.  280. 
298.                                                                         5  Ibid. 

(a)  Where    fraud  and   misrepresenta-  had  fraudulently  misrepresented  his  land, 

tion,  as  to  the  quality  of  land  conveyed  by  and  the  defendant  had  not  thus  agreed, 

the   plaintiff,    is    set  up  in  defence,  and  they    sliould    find     for     the     defendant ; 

there  is  evidence  of  an  agreement  on  the  for  the   questions  of  fraud,  waiver,  false 

part  of  the  defendant  to  waive  inspection  representations,  and  the  assumption  of  all 

of  the  land,  and  take  the  risk  of  its  quality  ;  risks,  are  for  the  jury.     Burr  v.  Todd,  41 

it  is  not  error  in  the  Court  to  instruct  the  Tenn.  206. 
jury,  that  if  they  find  that  the  plaintilF 


350 


LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXII. 


the  contract,  in  substantially  the  same  condition  in  which  it  was 
received  :  he  cannot  rescind  in  part,  and  affirm  as  to  the  residue. 
Producing  at  the  trial,  and  offering  to  cancel,  the  notes  received 
in  part-payment  of  the  purchase-money,  is  not  sufficient. ^(a) 

11.  But  a  deed  of  quitclaim,  made  six  months  after  the  pur- 
chase, was  held  within  a  reasonable  time  ;  it  not  appearing  that 
the  fraud  was  sooner  discovered.  So  where  such  a  deed  was  left 
with  the  clerk  of  the  Court,  in  which  an  action  on  the  note  given 
for  the  estate  was  pending,  with  notice  to  the  vendor ;  held,  a 
sufficient  restoration  of  the  property .^  So  where  the  vendee,  in  an 
executory  contract  for  the  sale  of  land,  goes  into  and  remains  in 
possession,  he  does  not  thereby  waive  objection  to  the  title  :  other 
circumstances  must  exist,  such  as  to  show  that  he  knew  of  its 
defects,  and  intended  to  accept  such  title  as  could  be  made,  rely- 


1  The  Matteawan,  &c.  v.  Bentley,  12 
Barb.  641. 


Concord  Bank  v.  Gregg,  14  N.H.  331. 


(a)  In  a  late  case  (Davis  v.  Tarwater, 
15  Ark.  290),  it  is  said  :  "  The  rule  is  the 
same,  whether  the  rescission  is  sought  on 
the  ground  of  fraud,  mistake,  or  for  any 
other  cause.  McDonald  v.  Fithian,  2  Gil- 
man,  26'J  ;  18  Ark.  182;  Cunningham  v. 
Fithian,  2  Gilman,  651 ;  Griffith  v.  Depew, 
3  A.  K.  Mar.  180.  This  doctrine  con- 
forms to  the  civil  law  ;  and  the  applica- 
tion of  a  vendee  to  a  Court  of  Equity  to 
rescind  a  contract  of  sale,  closely  resem- 
bles the  rescissory  action  of  the  civil  law 
on  the  part  of  the  buyer.  The  object  of 
this  action  is  to  rescind  the  contract  of 
sale  ;  and  it  cannot  be  commenced  but  by 
virtue  of  letters  of  rescission  obtained  in 
chancery,  by  which  a  rescission  is  directed, 
if  the  injury  set  fortli  by  the  buyer  shall 
appear  to  the  Judge.  The  seller  must 
render  to  the  buyer  the  price  which  he 
has  received,  upon  condition  that  the  lat- 
ter render  him  the  estate  sold,  which  must 
be  restored  in  the  condition  in  which  it 
was  found,  with  all  the  augmentations 
subject  to  the  contract,  whether  natural 
or  alluvions,  or  artificial,  as  buildings 
erected  upon  the  land.  The  seller,  how- 
ever, must  make  allowance  for  necessary 
repairs  and  erections  ;  and  the  buyer  is 
liable  for  rents  and  profits.  Pothier  on 
Contracts  of  Sale,  part  v.  chap.  2,  §§  374, 
381,  382.  The  duty  and  obligation  of 
vendor  and  vendee  do  not  differ  essen- 
tially under  our  system  and  under  tli« 
civil  law,  because,  under  both,  the  vendee 
may  obtain  the  purchase-money  with  in- 
terest, and  must  restore  the  estate.    And, 


while  he  is  accountable  for  rents  and  prof- 
its, he  may  be  reimbursed  for  necessary 
repairs  and  erections,  and  also  for  taxes 
and  assessments.  Reynolds  v.  Nelson,  6 
Mad.  19 ;  Hunter  v.  Geridy,  1  Ham.  449. 
In  Murphy  v.  Officer,  8  Yerg.  502,  it  was 
held,  that,  on  rescinding  the  contract,  the 
purchaser  was  bound  to  give  up  the  land ; 
and,  until  he  did  so,  an  adverse  title  in 
himself,  procured  after  the  decree  of  re- 
scission, could  not  be  set  up  by  him.  And 
in  Fitzjiatrick  v.  Feathei'stone,  3  Ala.  40, 
it  was  expressly  held,  that  a  contract  for 
the  sale  of  land  could  not  be  rescinded, 
where  the  purchaser  did  not  offer  to  re- 
turn the  land  to  the  vendor.  It  may 
therefore  be  asserted,  as  a  rule  well  sus- 
tained by  reason  and  authority,  that  if  the 
vendee  has  gone  into  the  possession  of  the 
estate,  and  wished  to  rescind  the  contract, 
he  must  give  fair  notice  of  his  intention 
to  do  so,  and  must  surrender,  or  ofier  to 
surrender,  the  estate  to  the  vendor,  or,  in 
case  of  death,  to  him  on  whom  the  descent 
is  cast.  He  has  no  right  to  abandon  it  to 
the  mercy  of  the  public  without  notice, 
because  the  inevitable  consequence  would 
be  waste  and  dilapidation,  even  if  it  should 
escape  a  sale  for  taxes,  and  thus  pass 
beyond  the  reach  of  vendor  and  vendee 
for  ever.  And  it  is  for  the  person  asking 
for  the  exercise  of  this  highest  power  of 
a  Court  of  Equity  to  show  clearly  that  he 
can  restore  the  land  on  rescission,  and 
that  the  parties  can  be  placed  in  statu  quo ; 
and  it  is  not  for  the  opposite  party  to  show 
that  it  cannot  be  done.    1  S.  &  M.  146." 


CHAP.    XXII.]  FRAUD.  351 

ing,  in  case  of  its  failure,  upon  the  covenants  of  warranty  for 
redress.^ 

12.  Although,  in  general,  a  parol  contract  is  merged  in  the  deed 
by  which  sucli  contract  is  perfected,  yet  an  action  for  fraud  in  the 
sale  of  lands  will  lie  against  the  grantor  and  others,  notwithstand- 
ing the  covenants  of  seisin  in  the  deed.- 

13.  So  although  the  acceptance  of  a  deed,  under  an  agreement, 
is  primd  facie  and  generally  an  extinguishment  of  the  agreement ; 
yet  if  the  vendor  fraudulently  induce  the  vendee  to  accept  a  deed, 
by  making  him  believe  that  the  whole  of  the  land  contracted  for  is 
included  in  it,  the  agreement  is  not  merged,  and  the  vendee  may 
maintain  an  action  upon  it.  So  although  he  has  paid  the  full 
amount  of  the  consideration-money  to  the  vendor.  So  he  may 
maintain  assumpsit  for  non-performance  of  the  contract,  and  is  not 
obliged  to  bring  an  action  for  deceit ;  nor  would  an  action  of  cove- 
nant be  proper.^ 

13  a.  It  has  been  seen  in  previous  chapters,  that  o.  partial  loss  of 
the  property  purchased,  or  failure  of  title  thereto,  arising  merely 
from  mistake,  does  not  generally  furnish  ground  for  rescinding  the 
sale,  but  only  for  compensation.  But  the  maxim,  caveat  emptor, 
is  not  to  be  applied,  so  as  to  protect  the  vendor  in  knowingly 
defrauding  the  vendee  as  to  the  quantity  of  the  land  sold.*  So, 
even  where  a  party  has  been  induced  to  purchase  land  by  the  iinin- 
te7itional  misrepresentations  of  the  seller  as  to  the  quantity  included 
within  the  boundaries,  the  deficiency  being  material,  equity  will  re- 
scind the  contract ;  and  this,  though  the  complaint  seeks  relief  upon 
the  ground  that  the  representations  were  fraudulently  made,  if  the 
answer  admits  a  mistake  as  to  the  quantity.^  So  where  the  quantity 
of  land  is  fraudulently  misrepresented  by  the  vendor,  the  contract 
is  not  obligatory  on  the  vendee,  though  the  land  be  sold  in  gross  or 
by  certain  boundaries ;  and,  in  an  action  to  rescind  the  contract,  it 
is  error  to  reject  evidence  of  the  actual  quantity  of  the  land  ;  the 
deficiency  in  quantity  being  the  basis  of  the  right  to  introduce 
evidence  touching  the  representations  of  the  defendant  concerning 
the  quantity  of  land,  and  such  other  circumstances  as  tended  to 
give  character  to  the  transaction. "^   And  the  fact  that  the  deficiency 

1  Jones  V.  Taylor,  7  Tex.  240.  *  Pringle  v.  Samuel,  1  Litt.  44. 

2  Bostwick  V.  Lewis,  1  Day,  33,  250  j  ^  Belknap  v.  Sealey,  2  Duer,  570. 
Norton  v.  Hathaway,  ib.  255.  tj  Hatch  v.  Garza,  7  Tex.  GO. 

3  Lee  V.  Dean,  3  Whart.  316. 


352  LAW   OF   VENDORS    AND    PURCHASERS.         [CHAP.    XXII. 

was  small  is  no  bar  to  relief,  if  it  bears  a  considerable  proportion 
to  the  whole  tract.^  Thus  there  was  a  purchase  of  land,  on  the 
representation  that  it  was  only  overflowed  from  tlie  backwater  of 
a  certain  bayou  ;  but  it  was  proved,  that  it  did  overflow  generally, 
that  the  owner  knew  it,  and  that  this  diminished  its  value.  Held, 
a  fraud,  and  the  contract  was  rescinded.^  So  a  sale  of  the  fixtures 
and  fittings  of  a  public  liouse  was  held  to  be  avoided,  by  a  false 
representation  of  the  vendor  as  to  the  amount  of  business  attached 
to  the  house,  though  the  agreement  expressly  excluded  the  good- 
will.^ So  a  misrepresentation,  by  a  vendor  of  a  saltpetre  cave,  of 
the  quantity  of  saltpetre  which  a  given  quantity  of  nitrous  earth  will 
produce,  authorizes  a  rescission  of  the  contract ;  even  though  the 
purchaser  employed  a  person  in  whom  he  had  confidence  to  exam- 
ine the  cave  for  him  after  the  representation  was  made,  and  he 
made  a  favorable  report.^  So  the  plaintiff  purchased  of  the  de- 
fendant a  tract  of  land  on  the  Ohio  River,  the  latter  representing 
and  believing  that  it  contained  a  valuable  coal-mine  ;  and,  besides 
paying  $4,400,  covenanted  for  an  annuity  of  $1,000  for  20  years, 
which  was  to  cease,  if,  after  the  mine  was  faithfully  worked,  it 
should  not  yield  a  certain  quantity  of  coal.  The  land  was  ac- 
cordingly conveyed,  but  proved  not  to  contain  such  a  coal-mine 
as  was  represented.  A  perpetual  injunction  was  granted  to  re- 
strain the  defendant  from  prosecuting  at  law  for  the  annuity.  It 
was  also  held,  that,  as  there  was  no  such  coal-mine  in  the  land  as 
was  represented,  the  plaintiff  need  not  work  the  mine  in  order  to 
discover  the  quantity  of  coal.^  So  a  misrepresentation  by  the  ven- 
dor of  an  occult  quality  in  the  land,  although  made  ignorantly,  and 
although  the  vendee  agrees  to  run  the  risk  in  this  respect,  has  been 
held  to  bar  an  action  for  specific  performance. *"(«) 

1  Pringle  v.  Samuel,  1  Litt.  44.  *  Perkins  v.  Rice,  Litt.  Sel.  Cas.  218. 

2  Alexander  v.  Beresford,  27  Miss.  747.  ^  Eosevelt  v.  Fulton,  2  Cow.  129. 

3  Hutchinson  v.  Morley,  7  Scott,  341.  «  Fisher  v.  Worrall,  5  W.  &  S.  478. 

[a]  So,  in  case  of  exchange  of  lands,  if  (eighteen  months  is  too  long  a  time,  in 

A.  represents  his  land  as  a  well-timbered  equity)    after    discovery    of    the    fraud, 

tract,   valuable,   and    taxed   at    $15    per  Cox  v.  Montgomery,  86  111.  896. 
acre  ;  and  B.,  having  never  seen  the  land,  A  farm,  being  part  of  the  estate  sold, 

which  was  nearly  a  lumdred  miles  distant  and  containing  much  grass  land,  was  de- 

from  the  place  of  making   the   bargain,  scribed  in  the  particulars  as  late  in  the 

takes  it  on  the  faith  of  this  representa-  occupation  of  A.,  at  the  rent  of  .£290.     A. 

tion ;  and  the  tax  has  really  been  only  had  occupied  the  farm,  as  yearly  tenant, 

from  .'J2.12  to  $6,  and  about  half  the  tim-  at  .£290,  but  entered  at  midsummer,  pay- 

ber,  including  all  that  was  easily  accessi-  ing  only  £1  for  the  first  quarter,  and  quit 

ble,  has  been  cut  oiF:  this  is  ground  for  at  Michaelmas,  in  the  next  year,  making 

rescinding  the  contract  in  reasonable  time  the  rent  £291  for  a  year  and  a  quarter. 


CHAP.    XXII.]  FRAUD.  353 

14.  But,  on  the  other  hand,  when  a  misrepresentation  as  to  the 
quantity  of  land  agreed  to  be  conveyed  is  made,  though  innocently, 
it  is  the  rigid  of  the  purchaser,  if  he  does  not  abandon  the  contract, 
to  have  what  the  vendor  can  convey,  with  an  abatement  of  a  pro- 
portionate amount  of  the  purchase-money.^  So  where  an  agent 
of  a  vendor,  by  misrepresenting  a  material  fact,  of  whicli  the  ven- 
dee had  not  the  means  of  obtaining  correct  information,  induced 
the  vendee  to  make  the  purchase  ;  in  an  action  against  the  vendee 
on  the  articles  of  agreement,  which  had  been  in  part  complied  with 
on  his  part,  it  was  held,  that  he  was  entitled  to  have  deducted, 
from  the  sum  claimed  in  the  action,  the  difference  between  the 
value  of  what  he  received,  and  what  he  thought  he  was  purchasing.^ 
So,  whenever  it  appears  that  the  vendor's  own  title-deeds  must 
have  disclosed  to  him  the  true  quantity  of  land,  he  is  bound  to 
make  compensation  for  a  deficiency,  though  his  deed  to  the  vendee 
express  a  quantity  "  more  or  less."  ^ 

15.  But  it  is  doubted,  whether  a  bill  filed  for  compensation 
singly,  without  other  relief,  can  be  maintained,  for  the  difference 
between  the  value  of  an  estate  sold  and  conveyed,  and  the  purchase- 
money  paid,  on  the  ground  of  fraud.  The  jurisdiction  of  equity  in 
cases  of  compensation  is  said  to  be  only  incidental  and  ancillary 
to  that  of  giving  relief,  by  enforcing  the  performance  of  contracts 

i  Walling  V.  Kinnard,  10  Tex.  508.  »  Duvals  i'.  Boss,  2  Munf.  290. 

2  Pennock  v.  Tilford,  17  Penn.  456. 

The  plaintiff,  the  purchaser  at  a  sale  by  as  to  the  amount  of  subscription,  of  alleged 
order  of  Court,  had  agreed  to  let  the  farm  expenditure  upon  A.  and  as  to  a  valid 
for  £225;  but  the  agreement  was  rescind-  purchase  of  B.  It  appeared  that  S.,  by 
ed  before  entry,  and  the  farm  would  not  whom  the  company  was  got  up,  had  con- 
let  for  nearly  £290.  Held,  the  plaintiff  tracted  for  A.,  to  be  sold  to  the  company, 
should  be  discharged  from  the  purchase,  but  had  expended  nothing  upon  it,  al- 
Dimmock  v.  Hallett,  Law  Rep.  (Eng.)  though  about  £70,000  had  been  expended 
Eq.,  Jan.  1867,  p.  21.  by  his  vendors  ;  also,  that  he  had  verbally 
A  limited  company  being  incorporated,  contracted  for  B.  Before  the  prospectus 
its  prospectus  commenced  with  the  state-  was  issued,  and  while  its  terms  were  be- 
ment,  in  prominent  type  and  red  ink,  that  ing  discussed,  S.  subscribed  for  2,500 
more  than  half  the  issue  of  5,000  shares  shares,  and  requested  the  directors  to  "allot 
had  been  taken,  and  with  an  invitation  for  that  number"  to  him  or  his  nominees 
applications  for  the  remaining  sheires.  Also,  in  such  manner  as  he  might  direct  at  the 
that  the  company  had  contracted  to  pur-  time  of  allotment.  After  the  i)rospectus 
chase  two  properties,  —  A.  on  which  was  issued,  S.,  by  his  agents,  procured 
"  upwards  of  £70,000  has  already  been  applications  for  shares,  including  200  for 
expended  by  the  vendor  in  buildings  and  himself,  to  an  amount  not  exceeding  half 
improvements,  in  addition  to  the  purchase-  the  first  issue  of  5,000.  Upon  this  evidence 
money  paid  by  him  for  the  land,"  and  B.  of  misrepresentation  by  the  defendants, 
The  plaintiff,  an  applicant,  to  whom  ten  and  S.,  their  authorized  agent,  the  allot- 
shares  were  allotted,  brings  a  bill  in  equity  ment  to  the  plaintiff  was  set  aside.  Ross 
to  set  aside  the  allotment;  alleging  fraud-  v.  Estates,  &c.,  Law  Eep.  (Eng.)  Eq.,  Feb. 
ulent  misrepresentations  in  the  prospectus  1867,  p.  121. 

23 


354  LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.   XXIJ. 

for  the  sale  of  real  property.     The  remedy  in  such  cases  is  at  law, 
by  an  action  for  damages. ^(a) 

16.  With  regard  to  the  jjarty  who  is  responsible  for  a  fraudulent 
representation  in  the  sale  of  land,  it  is  held,  that,  upon  a  proceed- 
ing in  equity  to  set  aside  such  sale,  the  person  most  benefited  by 
it  is  in  a  situation  to  be  suspected  of  the  fraud.  Therefore,  if  such 
a  person  makes  false  statements  as  to  material  matters  connected 
with  the  value  of  the  land,  and  which,  from  being  more  within  his 
private  knowledge,  or  other  circumstances,  were  clearly  relied  on 
in  the  purchase,  the  sale  is  void,  whether  he  believes  them  to  be 
true  or  not.  And,  in  a  bill  against  such  party  and  another,  it  is 
no  objection  to  rescinding  the  contract,  that  another  remedy  on  a 
guaranty  may  exist  against  the  person  alone,  now  become  insol- 
vent, but  not  against  tlie  other  respondent ;  or  that  the  complainant 
had  an  opportunity  to  examine  the  land,  and  one  of  his  friends  did 
examine  it,  some  time  before  the  bargain  was  completed  ;  if  the 
false  representations  were  relied  on  as  to  details,  and  others,  hired 
by  him  unknown  to  the  examiner,  were  uniting  in  statements  and 
acts  likely  to  mislead  ;  and  more  especially  if  the  misrepresenta- 
tions extended  also  to  other  matters  than  the  timber  on  the  land, 
which  were  material,  and  were  not  attempted  nor  offered  to  be 
examined.^ 

17.  The  vendor  is  responsible  for  the  misrepresentation  of  his 
authorized  agent.  Thus  the  purchase  of  an  estate  was  rescinded 
at  the  suit  of  the  purchaser,  on  the  ground  of  fraudulent  misrep- 
resentation ;  the  contract  having  been  completed  with  the  knowl- 
edge, on  the  part  of  the  defendant,  or  her  agent,  of  a  public  right 

1  Newham  v.  May,  13  Price,  749.  '■^  Smith  v.  Babcoclc,  2  Woodb.  &  M.  216. 

(a)  Tlie  vendees  of  land  entered  and  title  as  the  vendors  can  make,  with  com- 
made  expenditures,  not  only  in  good  faith,  pensation  for  the  deficiency,  they  have  a 
and  in  reliance  upon  the  execution  of  the  right  to  a  judgment  to  that  effect.  Held, 
agreement  by  the  vendors,  but  also  in  further,  where  the  purchase,  though  of 
actual  and  direct  compliance  with  their  several  parcels,  was  entire,  the  vendees 
own  covenants.  The  vendors  were  una-  would  not  be  compelled  to  take  part, 
ble  to  give  a  good  title  to  the  whole  of  the  Also,  that  the  compensation,  where  part- 
premises.  Held,  if  the  vendees  elected  to  performance  is  decreed,  should  consist  in 
rescind  the  agreement  in  toto,  they  were  an  abatement  from  the  price,  for  the  dimi- 
entitled  to  be  repaid  the  amount  they  had  nution  in  value  of  the  whole  property,  in 
expended,  in  comphance  with  the  contract,  consequence  of  defects  or  incumbrances, 
in  permanent  improvements,  and  that  and  not  in  a  deduction  of  what  might  be 
such  amount  should  be  a  hen  on  the  supposed  to  be  a  proportionate  part  of  the 
premises,  or  its  payment  a  condition  to  whole  price,  for  a  part  not  conveyed  at 
the  surrender  or  recovery  of  their  posses-  all,  with  a  conveyance  only  of  the  residue, 
sion  by  the  legal  owners.  If,  however,  Gibert  v.  Peteler,  38  Barb.  488. 
the  defendants  elect  to  receive  such  a 


CHAP.    XXII.]  FRAUD.  355 

of  way  over  the  property,  and  the  plaintiff  not  knowing,  nor  having 
the  means  of  knowing,  that  fact.^  So  tlie  defendant,  being  owner 
of  a  house,  employed  an  agent  to  sell  it.  The  agent  described  it 
as  free  from  rates  and  taxes,  and  did  not  know  it  to  be  otherwise ; 
but  it  was  in  fact  liable  to  certain  rates  and  taxes,  as  the  defend- 
ant knew.  On  the  faith  of  the  agent's  description,  the  plaintiff 
bought  the  house.  Held,  the  plaintiff  might  maintain  an  action 
on  the  case  for  deceit  against  the  defendant ;  though  it  did  not 
appear  that  the  defendant  had  instructed  the  agent  to  make  any 
representation  as  to  rates  or  taxes.^  So  A.  and  B.  gave  a  bond  to 
C,  conditioned  to  convey  certain  timber  land,  provided  C.  should 
elect  to  buy  the  same  on  certain  terms  within  thirty  days,  or  make 
sale  thereof  within  the  same  time ;  in  which  case,  only  one-half 
of  the  excess  over  a  certain  price  was  to  be  paid  to  A.  and  B.  C. 
did  make  sale  of  the  land,  and  A.  and  B.  received  one-half  of  the 
excess  of  the  price  over  the  stated  sum,  and  made  a  deed 
thereof  to  the  purchaser.  Held,  C.  was  the  agent  of  A.  and  B.  in 
the  sale,  and  they  were  bound  by  his  representations.^  And  where 
a  sale  made  by  an  agent  is  ratified  by  his  principals,  his  repre- 
sentations, made  at  the  time  of  the  sale,  bind  them.  Thus  a  paper 
was  executed  by  A.  as  agent  of  the  defendant  to  D.,  giving  D. 
the  refusal  of  certain  timber  lands  for  a  certain  time  at  a  certain 
price.  D.  subsequently  sold  the  land  to  the  plaintiff,  and  the 
deed  was  made  by  A.  The  plaintiff  brings  an  action  against  A. 
and  his  principals,  to  set  aside  the  sale,  on  account  of  fraudulent 
misrepresentations  by  D.  Held,  the  circumstances  created  a  legal 
presumption  that  D.  was  acting  as  agent  of  A.  and  his  principals, 
and  that,  as  A.,  by  his  conduct,  subsequently  ratified  the  sale,  he 
and  his  principals  were  responsible  for  all  D.'s  misrepresentations 
made  at  the  sale,  whether  D.  exceeded  his  authority  or  not,  inas- 
much as  they  could  not  ratify  a  portion  of  the  transaction  and 
reject  the  rest.^ 

18.  If  a  sub-agent  receives  from  the  vendee  a  part  of  the  pur- 
chase-money, and  pays  it  over  to  the  principal,  taking  land  instead 
of  it  for  his  compensation,  the  principal  is  liable  (on  a  rescission  of 


1  Gibson  v.  D'Este,  2  You.  &  CoU.  C.C.  3  Hough  v.  Richardson,  3   Story,  R. 
542.  659. 

2  FuUer  v.  Wilson,  3  Ad.  &  EU.  N.S.  *  Doggettr.  Emerson,  3  Story,  R.  700. 
68. 


356 


LAW    OF   VENDORS    AND    PURCHASERS.        [CHAP.   XXII. 


the  purchase  for  fraud)  to  repay  that  part,  as  well  as  what  he 
received  directly .^(a) 

19.  A  sale  of  lands  may  he  avoided  for  the  misrepresentation 
of  the  vendee  as  well  as  the  vendor.  Thus,  if  A.  articles  for  the 
purchase  of  B.'s  estate,  pretending  he  bought  it  for  one  whom  B. 
was  desirous  to  oblige,  but  in  truth  bouglit  it  for  another,  and  by 
that  means  got  the  estate  at  an  undervalue  ;  equity  will  not  decree 
an  execution  of  these  articles .^(6)     So  to  a  declaration  upon  a 

1  Doggett  V.  Emerson,  1  "Woodb.  &  M.  195,  206. 

2  Phillips  V.  Bucks,  1  Vera.  227. 

for  the  purchase-money,  according  to 
their  respective  interests,  that  they  would 
bear  their  respective  proportions  of  any 
losses  wliich  might  arise  from  inabiUty  of 
the  purchasers  to  pay  the  same ;  held, 
the  plaintiff  could  not,  in  equity,  have  any 
benefit  from  this  agreement,  in  case  he  • 
was  not  able,  from  the  parties  directly 
liable  to  him,  to  obtain  back  the  purchase- 
money  decreed  to  him.  Daniel  v.  Mitchell, 
1  Story,  R.  172. 

In  a  very  late  case.  Sir  G.  J.  Turner, 
L.J.,  remarked,  "  The  defendant  chose  to 
take  the  representations  of  the  agent  of 
the  vendor  that  the  vendor's  title  was 
good.  I  can  conceive  cases  in  which, 
upon  its  appearing  that  there  was  no 
foundation  whatever  for  such  representa- 
tions, the  representations  might  be  con- 
sidered fraudulent,  and  a  contract  entered 
into  on  tlie  faith  of  them  might  be  held  to 
be  one  which  this  Court  would  not  en- 
force. But  the  question  in  such  cases 
must,  as  I  apprehend,  be,  were  or  were 
not  the  representations,  fraudulent,  and 
known  to  be  fraudulent,  at  the  time  when 
they  were  made  ? "  Hume  v.  Pocock, 
Law  Rep.  (Eng.)  Eq.  July,  1866,  p.  384. 

(b)  But  if  A.,  in  contracting  with  B., 
falsely  represents  himself  to  be  the  agent 
of  C,  and  thereby  obtains  better  terms, 
the  Court  will,  notwithstanding,  enforce 
the  contract,  unless  A.  knew  that  such 
would  be  the  effect  of  the  misrepresenta- 
tion. Fellowes  v.  Lord  Gwydyr,  1  Sim. 
63.  A  purchase  of  lands  from  an  execu- 
tor, at  a  discount  of  eighteen  per  cent,  the 
purchaser  knowing  that  the  condition  of 
the  estate  did  not  require  the  sale,  is  a 
fraud  in  him,  thougli  he  may  know  that 
they  do  not  amount  to  more  than  the 
executor's  interest  in  the  estate  ;  and,  the 
executor  not  having  jjaid  to  the  other 
legatees  their  portion  of  the  estate,  the 
purchaser  will  be  compelled  to  repay  the 
money  to  them.  Pinckard  v.  Woods,  8 
Gratt.  140. 


(a)  The  following  case,  founded  equally 
upon  mutual  mistake  and  actual  mis- 
representation on  the  part  of  the  vendor, 
and  at  the  same  time  involving  the 
mutual  rights  and  obligations  of  principal 
and  agent,  may  properly  be  cited  in  this 
connection :  — 

A  contract  was  made  by  certain  par- 
ties, that  one  should  sell  and  the  other 
purchase  a  tract  of  timber  land  in  Maine, 
and  if,  upon  an  exploration,  it  did  not 
contain  sixty  millions  of  pine  timber,  and 
there  was  not  a  stream  running  through 
it,  which  would,  with  an  ordinary  freshet, 
carry  logs  from  the  tract  to  the  Kennebec 
River,  without  difficulty,  the  agreement 
should  be  void.  The  vendees  procured  an 
exploration,  and,  upon  a  favorable  report 
of  their  agent,  purchased  the  tract,  taking 
a  deed,  and  making  the  stipulated  pay- 
ments. It  subsequently  appeared,  that 
there  was  a  gross  mistake  in  the  estima- 
tion of  the  quantity  of  timber,  that  the 
exploration  was  not  made  entirely  upon 
the  tract  in  question,  but  partly  upon  an 
adjacent  one,  and  that  the  pine  timber 
did  not  exceed  Jive  millions.  Upon  a  bill 
in  equity,  brouglit  by  one  of  the  pur- 
chasers to  rescind  the  contract,  and  pray- 
ing for  general  relief:  Held,  1.  That  the 
original  contract  must  be  set  aside,  as 
founded  in  gross  mistake.  2.  That  the 
conveyance  to  the  plaintiff  must  be  re- 
scinded, and  the  purchase-money  restored. 
3.  That  the  agent  of  the  owners,  who 
had  effected  the  sale  in  his  own  name, 
having  received  the  purchase-money,  was 
primarily  liable  to  repay  it;  and  in  his 
aid,  those  of  the  other  defendants  for 
whom  he  had  acted  as  agent,  and  who 
had  received  any  part  thereof,  with  a  full 
knowledge  of  all  the  circumstances,  must 
repay  the  proportions  thereof  respectively 
received  by  them. 

A  mutual  agreement  having  been 
made  between  the  defendants,  upon  the 
division  among  them  of  the  notes  taken 


CHAP.   5XII.]  FRAUD.  357 

written  agreement,  by  which  the  plaintiff  agreed  to  purchase  of 
the  defendant  his  unexpired  term  in  a  farm,  and  all  the  crops,  ifec, 
alleging  that  the  defendant  had  not  delivered  up  possession  ;  one 
of  the  pleas  was,  that  the  defendant  in  his  lease  covenanted  with 
the  lessor  not  to  assign  without  his  consent ;  that  tlie  defendant, 
being  desirous  of  parting  with  the  farm,  applied  to  the  agent  of 
the  lessor,  wlio  stated  that,  if  he  could  find  a  successor  eligible  as 
tenant,  in  the  landlord's  opinion,  after  they  had  had  an  oppor- 
tunity of  inquiring  and  a  reference,  there  would  be  no  obstacle  ; 
that  the  agreement  was  made  for  the  purpose  of  J.  M.  becoming 
occupier  of  the  farm,  and  the  defendant  was  induced  by  the  plain- 
tiff and  J.  M.  to  enter  into  the  agreement,  on  the  faith  and  belief 
that  the  plaintiff  knew,  and  the  plaintiff,  to  induce  the  defendant 
to  enter  into  it,  represented,  that  J.  M.  was  a  person  of  respecta- 
bility, and  eligible,  &c.,  and  could  give  references;  whereas  J.  M. 
was  not  a  person  of  respectability,  and  could  not  give  references, 
&G.,  as  the  plaintiff  well  knew.  Held,  a  good,  though  informal, 
plea  of  fraud  ;  and  that  the  representation  was  material  to  the 
agreement,  and  not  collateral.^  So  where  the  vendee  applied  to 
the  vendor  to  purchase  a  lot  of  wild  land,  and  represented  to  him 
that  it  was  worth  nothing  except  for  the  purposes  of  a  sheep  pas- 
ture, when  he  knew  there  was  a  valuable  mine  on  the  lot,  of  the 
existence  of  wb.ich  the  vendor  was  ignorant ;  held,  a  fraud,  which 
would  avoid  the  purchase.^ 

20.  But  it  is  elsewhere  held,  that  a  purchaser  of  land, 
knowing  it  to  contain  a  mine,  is  not  bound  to  inform  the 
vendor,  who  is  ignorant  of  it.^  Black,  J.,  says  (p.  359), 
"  A  purchaser  is  not  bound  by  our  laws  to  make  the  man  he 
buys  from  as  wise  as  himself.  Every  man  must  bear  the  loss 
of  a  bad  bargain  legally  and  honestly  made.  If  not,  he  could 
not  enjoy  in  safety  the  fruits  of  a  good  one.  If  the  defend- 
ant, during  the  negotiation  for  the  purchase,  wilfully  made  any 
misstatement  concerning  a  material  fact,  and  then  misled  the 
plaintiff  and  induced  him  to  sell  it  at  a  lower  price  than  he  other- 
wise would,  then  the  contract  was  a  cheat  and  the  deed  is  void 
utterly.  But  in  all  cases  where  the  evidence  brings  the  parties 
face  to  face,  the  language  and  conduct  of  the  defendant  seems  to 

1  Feret  v.  Hill,  6  Eng.  R«p.  261.  See  2  Livingston  v.  Peru,  &c.  2  Taige,  3<J0. 
Canham  v.  Barry,  29  Eng.  Law  &  Eq.  290.         ^  Harris  v.  Tyson,  24  Penn.  347.     See 

p.  364. 


358  LAW    OF   VENDORS    AND    PUECHASERS.        [CHA?.    XXII. 

have  been  unexceptionable.  An  offer  was  made  and  rejected  to 
prove  that  Tyson  had  made  certain  statements  in  the  neighborhood 
which  were  calculated  to  produce  the  impression  that  all  the 
chrome  in  that  region  was  not  very  valuable.  It  was  even  pro- 
posed to  be  shown  that  he  had  spoken  in  depreciating  terms  of 
said  chrome  on  a  tract  adjoining  Harris's.  It  would  at  least  have 
been  useless,  and  it  might  have  had  a  pernicious  influence  on  the 
minds  of  the  jury,  to  have  admitted  such  evidence.  To  invalidate 
a  solemn  deed  by  showing  that  misrepresentations  were  used  to 
obtain  it,  there  must  be  very  clear  proof  that  the  falsehood  was 
told  directly  or  indirectly  to  the  grantor.  It  is  not  to  be  supposed 
that  he  was  influenced  by  a  statement  neither  made  to  himself 
nor  communicated  to  him.  If  the  vendee's  conduct  in  all  his 
transactions  with  the  vendor  was  honest  and  fair,  he  is  not  answer- 
able in  this  action  for  what  he  may  have  said  elsewhere  to  other 
persons."  So,  in  case  of  a  sale  of  land  for  copper  stock  and  the 
vendee's  note,  the  vendee  told  the  vendor  to  inquire  about  the 
value  of  the  stock,  and  not  rely  on  his,  the  vendee's,  estimate. 
Though  the  stock  proved  worthless,  the  sale  was  held  good.^ 

21.  An  order,  giving  a  party  authority  to  sell  and  convey  land, 
fraudulently  obtained  from  a  Court,  is  no  better  than  a  power 
fraudulently  derived  from  the  party  whose  rights  are  injuriously 
affected  by  it.  It  may  always  be  annulled,  and  all  proceedings 
under  it  may  be  set  aside,  at  his  instance,  upon  establishing  the 
fraud,  at  least  as  to  all  persons  who  were  parties  or  privies  to  such 
fraud.2  But  if  the  purchaser  of  land  at  a  sheriff's  sale  was  inno- 
cent, it  is  immaterial  whether  there  was,  or  was  not,  fraud  on  the 
part  of  others.^ 

22.  With  regard  to  the  remedy,  in  case  of  misrepresentation  by 
a  vendor  of  real  estate  ;  it  has  been  sometimes  held  (though  this 
can  hardly  be  considered  as  the  established  doctrine),  that  no 
action  lies  against  the  vendor  of  such  property,  for  false  and  fraudu- 
lent representations  respecting  its  quality  and  situation.*  So,  also, 
that  damages  cannot  be  recovered  for  the  loss  of  a  good  bargain ; 
and  that  an  action  will  not  lie  for  a  deceit,  in  an  executory  con- 
tract respecting  the  sale  of  lands,  unless  perhaps  in  the  false 
affirmation  of  title. ^ 

1  Beeker  v.  Hastings,  15  Mich.  47.  *  Sherwood  v.  Salmon,  2  Day,  128. 

2  Clark  V.  Underwood,  17  Barb.  202.  ^  Fagan  v.  Newson,  1  Devereux,  20. 

3  Spindler  v.  Atkinson,  3  Md.  409.  See  Damages. 


CHAP.   ?XII.]  FRAUD.  359 

23.  But  the  weight  of  authority  is,  that,  where  representations 
are  made  of  the  nature  and  character  of  property  offered  for  sale, 
affecting  its  value,  which  turn  out  to  be  false  to  the  knowledge  of 
the  party  making  them ;  an  action  at  law  lies  for  damages  for  the 
deceit,  or  a  suit  in  equity  to  set  aside  the  contract. ^  Thus  a 
vendor,  misrepresenting  the  state  of  the  title,  will  be  restrained 
from  enforcing  it,  though  the  sale  be  with  general  warranty .^  So 
the  vendee  may  go  into  equity  for  relief,  although  there  has  been 
no  eviction  .2  So  a  partial  failure  of  consideration  for  a  note  given 
in  payment  for  land  sold,  not  arising  out  of  failure  of  title,  but 
out  of  fraudulent  misrepresentations  respecting  the  quantity  of 
timber,  may  be  given  in  evidence  in  defence  in  a  suit  upon  such 
note,  while  it  remains  in  the  hands  of  the  seller,  or  in  the  hands 
of  one  having  no  superior  rights.  And  the  buyer  may  make  such 
defence,  though  he  contracted  to  sell  a  portion  of  the  land,  and 
gives  the  seller  in  part-payment  a  note  signed  by  the  second 
vendee  as  principal,  and  himself  as  surety.* 

24.  With  regard  to  the  proper  evidence  of  fraud,  in  contracts  for 
the  sale  and  purchase  of  lands,  it  has  already  been  stated  (p.  170), 
that  a  written  contract  must  be  expounded  by  itself,  and  cannot  be 
diminished  or  added  to  by  parol  evidence^  except  under  an  allega- 
tion of  fraud  or  mistake.^ 

25.  And  this  exception  lias  been  strictly  construed.  Thus  parol 
evidence  is  inadmissible,  that  one  of  the  parties  to  the  agreement 
represented,  that  such  agreement  would  give  to  the  other  party 
what  the  agreement  distinctly  declared  lie  should  not  have ;  the 
agreement  itself  being  the  best  evidence  of  what  the  parties  in- 
tended should  be  the  final  and  binding  contract  between  them, 
and  nothing  being  shown  to  have  been  left  out  of  the  agreement 
by  fravid  or  mistake.^  So  parol  evidence  is  inadmissible,  that  a 
contract  for  the  sale  of  land  was  agreed  to  be  put  in  writing,  but 
the  vendor  fraudulently  refused  to  do  so.''' 

26.  But  misrepresentation  and  fraud  may  always  be  shown  by 
parol  evidence.     Thus  the  defendant,  in  a  suit  for  specific  perform- 

1  Attwood  V.  Small,  6  Cla.  &  Fin.  395.  5  Blanchard  v.  Moore,  4  J.  J.  Marsh. 

2  Shackelford  v.  Handley,  1  A.  K.  Mar.  471 ;  Wesley  v.  Thomas,  G  Harr.  &  John. 
370.  24 ;  Watkins  v.  Stockett,  6  Harr.  &  John. 

3  English  V.  Benedict,  25  Miss.  167.  435. 

^  Hammatt    v.    Emerson,    27    Maine,         "  Jarvis  v.  Palmer,  11  Paige,  650. 
308.  1  Box  V.  Stanford,  13  Sm.  &  M.  93. 


360  LAW   OF  VENDORS   AND   PURCHASERS.        [CHAP.    XXII. 

ance,  may  show  in  his  defence  by  parol  evidence,  that  the  written 
contract  rehed  upon  does  not  correctly  and  truly  express  the 
agreement  of  the  parties,  but  that  there  is  some  material  omission, 
insertion,  or  variation,  through  mistake,  surprise,  or  fraud. ^  So 
where,  in  a  treaty  for  the  sale  of  property,  the  vendor  makes  material 
misrepresentations,  by  which  the  purchaser,  having  no  knowledge 
or  means  of  knowledge  in  relation  thereto,  is  actually  deceived 
to  his  injury  ;  equity  will  rescind  the  contract,  although  it  do  not 
itself  contain  the  misrepresentations ;  and  whether  they  be  the 
result  of  mistake  or  fraud .^  So  parol  evidence  has  been  held 
admissible,  by  way  of  defence,  of  a  warranty  made  by  the  vendor 
at  the  time  the  deed  was  executed,  that  he  had  a  good  title  to  a 
certain  number  of  acres.^  So  where  circumstances  denote  fraud 
in  omitting  to  reduce  part  of  an  agreement  into  writing,  the  whole 
of  it  is  open  to  parol  proof.  The  Court  disregards  the  writing, 
and  treats  the  whole  transaction  as  a  verbal  contract.  Thus  in  a 
bill  filed  by  the  lessee  of  premises,  which  he  held  under  a  church 
lease,  against  persons  who  had  agreed  in  writing  to  purchase  his 
lease,  the  complainant  alleged,  that  an  implied  right  of  renewal 
entered  into  the  purchase,  and  that  the  defendants  were  to  take, 
subject  to  a  burden  upon  a  part  of  the  premises,  of  a  lease  for  a 
year,  which  had  been  granted  by  the  complainant.  The  buyers 
omitted  to  insert  these  things  in  the  written  agreement,  but  verb- 
ally recognized  them ;  and  they  managed  to  get  a  renewal  in  their 
own  names,  through  the  recommendation  of  the  complainant ;  but 
declined,  inasmuch  as  the  old  term  had  in  the  mean  time  expired, 
to  make  good  their  agreement  with  the  latter,  and  proceeded  to 
eject  the  tenant,  who  was  to  have  held  possession  of  a  part  for  a 
year.  Complainant  prayed  that  the  parties  might  pay  their  pur- 
chase-money, and  perform  their  contract  with  him.  A  general 
demurrer  was  interposed,  but  overruled.^  So  an  action  will  lie 
against  the  seller  of  any  interest  in  an  estate,  for  affirming  the 
rents  to  be  more  than  they  are,  while  he  is  in  treaty  about  the 
sale,  if  the  vendee  purchases  upon  the  faith  of  such  affirmation ; 
though  the  seller  was  not  then  in  possession,  and  the  affirmation 

1  Best  V.    Stow,   2   Sandf.   298,   300  ;  3  Frederick  v.  Campbell,  13  Serg.  & 
Chambers  v.  Livermore,  15  Mich.  881.       Rawle,   136;    M'Lelland  v.  Creswell,  ib. 

2  Hough   V.  Richardson,  3  Story,  R.     143. 

659;  Prentiss  v.  Russ,  4  Shepl.  30.  •»  Phyfe  v.  Wardell,  2  Edw.  Ch.  47. 


CHAP.   XXII.]  FRAUD.  361 

preceded  the  salc.^  Thus,  in  an  ancient  case,  the  defendant,  in 
an  action  for  deceit,  sold  the  plaintiff  a  messuage,  which  he  affirmed 
was  let  for  £42  per  annum,  the  rent  being  actually  only  ,£32. 
Held,  the  action  would  lie,  the  case  being  not  a  mere  affirmation 
of  a  false  value,  which  is  matter  of  judgment,  but  a  fahity  in  his 
own  knowledge.  Neitlier  is  it  the  case  of  a  ivarranty  in  a  thing 
apparent ;  because  the  lease  may  be  by  parol,  or  the  tenant  un- 
willing to  say  what  rent  he  paid.^  So,  where  the  vendor  of  a 
public  house  made,  pending  the  treaty,  certain  deceitful  represen- 
tations respecting  the  amount  of  business  done  in  the  house,  and 
the  rent  received  for  a  part  of  the  premises,  whereby  the  plaintiff 
was  induced  to  give  a  large  sum  for  them  ;  held,  the  latter  might 
maintain  an  action  on  the  case  for  the  deceitful  representations, 
although  they  were  not  noticed  in  the  conveyance,  or  in  a  written 
memorandum  of  the  bargain,  drawn  up  after  these  representations 
were  made.^  So  where  the  defendant,  being  about  to  sell  a  public 
house,  falsely  represented  to  B.,  who  had  agreed  to  purchase  it, 
that  the  receipts  were  <£180  a  month  ;  and  B.,  with  the  knowledge 
of  the  defendant,  communicated  this  representation  to  the  plaintiff, 
who  became  the  purchaser  instead  of  B. :  held,  the  plaintiff  might 
maintain  an  action  against  the  defendant.^ 

27.  Parol  evidence  is  inadmissible  to  reform  a  written  contract, 
according  to  the  intention  of  the  parties,  upon  the  ground  of 
fraud,  unless  the  declaration  especially  sets  forth  the  fraud,  as 
a  ground  for  such  reformation.  But,  to  insist  upon  the  legal 
effect  of  a  written  agreement,  when  an  exception  was  not  inserted, 
on  the  expressed  imderstanding  of  the  parties,  that  such  excepted 
matter  was  not  embraced  in  the  agreement ;  is  such  a  fraud  as 
will  admit  parol  testimony  to  reform  the  contract.^(a) 

1  Lysney  v.  Selby,  2  Ltl.  Raym.  1118.  4  Pilmore  v.  Hood,  5  Bing.  N.C.  97; 

2  Ekins  V.  Tresham,  Lev.  Pt.  1,  102.        6  Scott,  827. 

2  Dobell  V.  Stevens,  3  Barn.  &  Cress.  ^  Renshaw  v.  Gans,  7  Barr,  117. 

623. 

(a)  In   addition   to   the   fraud,  wliich  real  or  personal  property,  whicli  has  heen 

consists  of  positive  min^irprcaentatuin,  —  swj-  more  prolific  of  discussion,  or  upon  wiiich 

gestio  falsi— with  rou'^nnl  to  tiie  ])roperty  the  precise  existing  rule  of  law  seems  to 

sold  ;    it  is   sometimes    held,   that   mere  be  more  unsettled.     As  lias  been  already 

negative  concealment  —  suppressio  veri  —  of  seen,  even  in  case  of  actual  misrepresen- 

facts  known  by  one  party  and  not  known  tation,  neither  law  nor  equity  affords  aid 

b}^  the  other,  has  tlie  same  effect  of  avoid-  and  relief  to  a  party  who  is  not  injured 

ing  the  sale.     (See  Waters  ?;.  Mattingly,  by  sucli  misrepresentation,  but  by  his  own 

1  Bibb,  244 ;  Broderick  v.  Broderick,  11  negligence    in    trusting   to   it,    with    full 

P.  Wms.  240.)     Tliere  is  no  ]ioint,  liow-  knowledge  or  means  of  knowledge  of  the 

ever,  connected  with   tlie  sale  of  eitlier  actual  facts  of  the  case.     (See  Wason  v. 


362 


LAW   OF   VENDORS    AND    PURCHASERS.         [CHAP.    XXII. 


Waring,  15  Eng.  Law  &  Eq.  121.)  And 
the  same  rule  is  still  more  decisively  ap- 
plicable to  mere  concealment ;  which  indeed 
can  hardly  be  said  to  exist  in  the  case 
supposed,  because,  from  a  party  having 
notice,  nothing  is  truly  concealed.  The 
discussions  upon  the  subject  all  presup- 
pos(^kno\vledge  in  one  party,  and  neces- 
sary ignorance  in  the  other ;  and  the 
confusion  arises  from  the  nice  shades  of 
distinction  which  run  through  the  decided 
cases,  and  the  elementary  writers,  as  to 
the  moral  rights  and  duties  of  vendor  or 
vendee  under  such  circumstances;!  and 
also  from  the  conflicting  doctrines  of  the 
civil  law  and  the  common  law;  caveat  ven- 
ditor being  the  cardinal  maxim  of  the  one, 
caveat  emptor  of  the  other.  It  may  be 
useful,  at  the  close  of  the  present  chapter, 
to  refer  to  a  few  of  the  leading  authorities, 
some  of  which  have  been  already  cited 
in  other  connections,  upon  the  application 
of  the  latter  maxim,  generally,  to  sales  of 
real  property.  (See  Met.  Yelv.  21,  b.) 
Upon  this  subject,  it  has  been  truly  said 
(Taylor  v.  Fleet,  4  Barb.  102),  that  "the 
vendee  must  guard  himself  against  the 
vendor's  strong  representations  and  com- 
mendations of  the  good  qualities  of  the 
land  sold,  by  personal  examination  and 
inquiry,  unless  such  examination  and  in- 
quiry are  difficult  or  are  prevented  by  the 
artifice  of  the  vendor."  This  principle 
has  been  held  to  apply,  where  the  vendor 
of  a  house  represented  it  as  a  residence 
fit  for  a  respectable  family;  because  the 
vendee  might  see  the  house  and  judge 
upon  that  point  for  himself  (Magennis. 
V.  Fallon,  2  Moll.  461.)  So,  where  a  house 
was  sold,  on  the  north  side  of  the  Thames, 
supposed  to  be  in  the  County  of  Essex, 
biit  actually  in  Kent,  a  small  part  of  which 
county  was  on  the  other  side  of  the  river ; 
the  purchaser  was  told  he  would  be  made 
a  churchwarden  of  Greenwich,  when  his 
object  was  to  be  a  freeholder  of  Essex ; 


yet  he  was  compelled  to  complete  the  pur- 
chase. (Shirley  v.  Davies,  6  Ves.  678. 
This,  however,  with  some  others  of  like 
import,  has  been  called  a  wild  case,  —  per 
Hart,  L.C.  2  Moll.  588.)  So  the  descrip- 
tion of  the  land,  as  "iincommonly  rich 
water  meadow,"  was  held  to  be  the  mere 
loose  opinion  of  the  auctioneer  or  vendor, 
upon  which  the  purchaser  could  not  be 
supposed  to  place  any  reliance.  (Scott  v. 
Hanson,  1  Sim.  13.)  So,  where  a  house 
without  roof  or  windows  is  warranted  to 
be  in  perfect  repair ;  the  warranty  is  said 
not  to  be  binding.  (Per  Lord  Rosslyn, 
Grant  v.  Munt,  Coop.  173.)  So,  where  C. 
gave  a  certificate  that  certain  lands,  which 
he  had  "  partially  explored,"  contained, 
"  as  far  as  my  knowledge  extends,"  a  cer- 
tain average  of  timber,  and  it  appeared 
that  the  purchasers,  to  whom  it  was  given, 
had  as  full  means  of  knowledge  as  C. ;  it 
was  held,  that  they  were  not  entitled  to 
place  implicit  reliance  thereon,  and  make 
it  the  basis  of  their  contract,  but  that 
they  should  have  investigated  the  grounds 
of  the  opinion  therein  expressed,  and  the 
extent  of  the  exploration  by  C.  Hough 
V.  Richardson,  3  Story,  R.  659.  But  it  is 
said  (1  Sugd.  445),  that,  where  a  particu- 
lar description  is  given  of  the  estate, 
which  turns  out  to  be  false,  and  the  pur- 
chaser cannot  be  proved  to  have  had  a 
distinct  knowledge  of  the  actual  state  of 
the  subject  of  the  contract,  he  will  be  en- 
titled to  a  compensation.  Thus,  where 
the  particular  described  the  house  sold  as 
in  good  repair,  and  the  flirra  as  consisting 
of  arable  and  marsh  land,  in  a  high  state 
of  cultivation,  it  was  held  that  these  were 
points  of  which  a  purchaser  might  have 
an  indistinct  knowledge ;  but,  if  defects 
became  apparent  upon  a  subsequent  care- 
ful examination,  he  was  entitled  to  be 
compensated. 

In  Harvey  v.  Young  (Yelv.  21,  a.),  the 
plaintiff"  brought  an  action  for  deceit  in 


1  It  is  said  (Story  on  Sales,  §  174;  see 
also  1  Story,  Eq.  §§  204  et  seq. ;  2  Kent, 
481),  "Concealment  of  a  fact  is  never  con- 
sidered as  fraudulent,  unless  there  be  a  legal 
or  equitable  obligation  on  the  part  of  the 
person  concealing  it  to  divulge  it,  growing 
out  of  some  express  or  implied  trust  in  the 
party  concealing  it.  The  omission  to  comply 
with  a  merely  honorary  or  purely  moral  obli- 
gation does  not,  of  itself,  furnish  a  sufficient 
ground  to  set  aside  a  contract."  Obviously, 
however,  this  proposition,  which  may  be  called 
not  merely  a  truth,  but  almost  a  truism,  throws 
little  light  upon  the  real  point  of  controversy ; 
for  it  furnishes  no  test  of  the  existence  or 
non-existence  of  the  "legal  or  equitable," 
"  merely  honorary  or  purely  moral  obliga- 
tion," referred  to. 

A  distinction  is  sometimes  made  between 


intrinsic  and  extrinsic  circumstances,  which 
affect  the  value  of  the  property  sold;  the 
former  appertaining  to  the  nature,  condition, 
character,  quality,  or  quantity  of  the  property 
itself;  the  latter  to  collateral  facts:  and  the 
dutj'  of  disclosure  held  to  be  more  binding 
with  respect  to  the  former  than  the  latter. 
The  distinction,  however,  does  not  seem  suffi- 
ciently established  by  English  and  American 
authorities,  however  well  settled  in  the  civil 
law,  to  I'equire  further  notice.  It  is  also  some- 
times stated,  that,  while  mere  concealment 
may  not  give  the  right  to  aiuiul  an  executed 
contract,  by  legal  proceedings  instituted  on 
behalf  of  the  party  injured;  still  it  may  be 
set  up  in  defence  against  a  suit  in  law  or 
equity,  upon  an  executory  agreement,  brought 
by  the  party  who  has  practised  it. 


CHAP.    XXII.] 


FRAUD. 


3G3 


the  sale  of  a  term,  which  tlie  vendor 
affirmed  to  be  worth  .£150,  but  whicli 
proved  to  be  worth  only  .£100.  A  distinc- 
tion was  there  taken  between  mere  njlir- 
malion  and  warranty,  b»it  no  decision 
seems  to  have  been  made.  This  distinc- 
tion was  afterwards  overruled  in  I'asley 
V.  Fi-eeman,  3  T.  11.  57.  Tlie  true  jirinci- 
ple  is  stated  to  be,  that,  where  an  atlirma- 
tion  is  a  mere  assertion,  and  the  vendee 
may  judge  for  himself,  as  in  case  of  a 
mere  opinion,  or  wliere  tlie  truth  may  be 
known  by  common  prudence,  no  action 
lies.     Yeiv.  (Met.)  21,  a.  n. 

The  following  cases  relate  more  par- 
ticularly to  mere  concealment :  — 

Action  by  the  purchaser  against  the 
vendor  of  a  house,  for  selling  him  the 
house,  knowing  it  had  the  dnj  rot.  It  ap- 
peared that  the  house  was  situated  in  a 
claj'ey  soil,  and  that  the  floor  lay  near  the 
ground,  whereb}^  some  of  the  timbers  had 
rotted ;  but  that  the  vendor  was  not  aware 
of  these  defects.  Lord  Kenyon  denomi- 
nated them  mere  haijatdles ;  and  remarked, 
that,  if  these  small  circumstances  were 
to  be  the  foundation  of  an  action,  every 
house  that  was  sold  would  produce  an  ac- 
tion. A  broken  pane  of  glass  in  a  garret 
window  would  furnish  ground  for  an  ac- 
tion. His  Lordship  further  remarked, 
that  he  had  met  with  something  of  this 
kind,  and  he  never  thought  himself  im- 
posed upon,  because  now  and  then  some 
rotten  boards  and  rotten  joists  might  be 
found  about  a  house.  The  plaintiff  was 
nonsuited.  Boulds  v.  Atkinson,  2  Sugd. 
452. 

Case  for  deceit.  Declaration,  that  the 
defendant,  being  lessee  of  certain  premi- 
ses, agreed  to  sell  them  to  the  plaintiff, 
who  agreed  to  purchase  them  of  her,  for 
the  residue  of  the  term,  and  they  were 
assigned  to  him  accordingly  ;  that,  at  the 
times,  &c.,  the  premises  were  held  by  a 
tenant  of  the  defendant  at  the  rent  of 
£100  a  j'-ear,  but  charged  with  £16  a  year 
for  rates  and  taxes,  which  the  tenant 
paid,  and  was  at  liberty  to  deduct  out  of 
the  rent ;  all  of  which  the  defendant 
knew,  but  the  plaintiff  did  not,  as  the  de- 
fendant also  knew  ;  that  the  defendant,  at 
the  times,  &c.,  deceived  the  plaintiff,  and 
fraudulently  represented  to  him  that  the 
premises  were  let  at  .£100  a  year  clear  of 
taxes  and  rates,  and  concealed  from  him 
that  the  rent  was  subject  to  the  said  de- 
ductions ;  that  the  plaintiff  was  induced 
by  the  representations  and  conduct  of  the 
defendant  to  take  the  assignment ;  and 
that  the  defendant,  by  means  of  the  ])rem- 
ises,  &c.,  deceived  the  plaintiff,  and  in- 
duced him  to  purchase,  &c.,  at.  a  larger 
sum  than  he  otherwise  would  have  paid. 
Plea,  not  guilty. 


A  special  verdict  stateil,  that  the  de- 
fendant knew  of  the  above  deductiims, 
which  were  made  by  agreenu'iit  from  the 
rent;  that  she  desired  W.,  her  attorney, 
to  instruct  the  i)iaintiff,  an  auctioneer,  to 
prepart!  particulars  tor  sale  of  the  prem- 
ises, and  referred  AV.  for  information  to  a 
person  having  a  lien  on  the  i)remises,  who 
told  W.  that  "the  rent  was  £100  a  year; 
that  W.  asked  no  question  about  rates  and 
taxes,  assuming  that  the  tenant  i)aid  them, 
as  the  practice  was  in  London,  where  the 
premises  were  situate;  that  the  defendant 
did  not  further  interfere ;  that  W.,  not 
knowing  that  the  defendant  i)aid  the  rates 
and  taxes,  instructed  the  plaintiff  that  the 
premises  were  held  by  a  tenant  at  £100  a 
year,  but  never  described  tiiem  to  him  as 
clear  of  rates  and  taxes,  or  authorized 
him  so  to  represent  them ;  that  the  plain- 
tiff drew  up  a  particular  for  the  sale, 
stating  the  premises  to  be  let  at  .£100 
"clear  of  rates  and  taxes;"  that  W.  saw 
the  particular,  but  did  not  correct  it,  be- 
cause he  thouglit  it  true,  and  W.  thought 
it  the  plaintiff's  duty  to  inquire  into  the 
outgoings,  when  lie  was  employed  to 
make  the  particular ;  that  the  premises 
were  put  up  to  sale  and  bought  in,  and  the 
plaintiff  then  took  them  himself,  and  they 
were  assigned  to  him ;  that  neither  W. 
nor  the  plaintiff  knew  of  the  agreement 
for  a  deduction  from  the  rent,  till  after  the 
assignment  and  payment  of  the  purchase- 
money  ;  and  that,  at  the  times  of  such  as- 
signment and  payment,  the  plaintifi'  be- 
lieved the  premises  to  be  let  at  £100  clear 
of  rates  and  taxes.  Held,  on  this  finding, 
it  did  not  appear  that  the  defendant  had 
been  guilty  of  any  actual  fraudulent  repre- 
sentation or  concealment,  or  had  author- 
ized any;  that  if  W.,  as  her  agent,  had 
been  thus  guilty,  she  would  herself  have 
been  liable;  but  that  no  such  misfeasance 
by  W.  ajipeared  by  the  verdict ;  and  there- 
fore the  defendant  was  entitled  to  judg- 
ment. Wilson  V.  Fuller,  3  Ad.  &  Ell.  N.S. 
68. 

But  it  is  said,  if  a  vendor  should  sell 
an  estate,  knowing  he  had  no  title,  or  that 
there  were  incumbrances  unknown  to  the 
vendee,  the  sale  would  be  voidable  for 
fraud.  So  in  case  of  the  sale  of  a  house 
in  a  distant  town,  which  the  vendor  knew 
to  be  burnt  down,  the  vendee  being  igno- 
rant of  it.  2  Story,  Eq.  226-27,  §§  208-0  ; 
Arnott  V.  Biscoe,  1  Ves.  95;  Pillage  v. 
Armitage,  12  Ves.  78. 

Bill  for  specific  performance  by  a  ven- 
dor. Defence,  that  he  represented  it  as 
clearing  a  net  value  of.£yO])er  annum,  and 
gave  no  notice  of  the  necessary  repair  of 
a  wall  to  protect  the  estate  from  the 
Thames,  which  would  be  an  outgoing  of 
£50  per  annum.     Upon  the  ground  that 


364 


LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXII. 


tlais  fact  had  been  industriously  concealed, 
the  bill  was  dismissed,  but  without  costs. 
Shirley  v.  Stratton,  1  Bro.  440. 

So  where  the  vendor  of  a  house,  know- 
ing a  defect  in  a  main  wall,  plastered  it 
up  and  papered  it  over ;  held,  he  was 
liable  to  the  purchaser.     4  Taun.  785. 

Concealment  may  be  practised  by  the 
vendee  as  well  as  the  vendor.  In  such 
case  it  has  been  held,  that  if  one,  know- 
ing the  existence  of  a  mine  upon  the  land 
of  another  wlio  is  ignorant  of  it,  purchase 
the  land  for  a  price  which  the  land  would 
be  worth  without  the  mine  ;  the  vendor  is 
still  bound.  Fox  v.  Mackreth,  2  Bro.  420. 
Although  it  has  been  doubted  whether 
a  Court  of  Equity  would  enforce  specific 
performance  in  favor  of  the  purchaser. 
2  Kent,  490 ;  Parker  v.  Grant,  1  Johns. 
Ch.  630.  And  Lord  Eldon  remarks 
(Turner  v.  Harvey,  Jac.  178),  that,  al- 
though the  vendee,  in  the  case  supposed, 
is  not  bound  to  give  the  information  wliere 
no  inquiry  is  made,  still  a  very  little  will 
afltect  the  application  of  the  principle,  and 
it  will  not  be  allowed  to  operate,  if  a  sin- 
gle word  is  dropped  tending  to  mislead 
the  vendor.  See  Pidcock  v.  Bishop,  3  B. 
&  C.  605.     See  p.  357. 

The  following  late  cases  may  be  added 
upon  the  point  of  concealment :  — 

Where  a  vendor  has  concealed  a  fact 
which  would  have  materially  influenced 
the  sale,  and  which  was  unknown  to  the 
vendee,  and  which  good  conscience  would 
have  obliged  the  vendor  to  disclose ;  the 
vendee  is  entitled  to  redhibition  of  the  con- 
tract.    Parret  v.  Shaubhut,  5  Min.  323. 

If  a  vendor  sell  an  estate  upon  which 
there  are  incumbrances,  his  silence  con- 
cerning them  is  not  fraudulent,  if  an  igno- 
rance of  them  by  the  purchaser  can  only 
arise  from  his  own  negligence  or  laches. 
Ward  V.  Packard,  18  Cal.  391. 

A  certificate  of  purchase  of  swamp 
land,  issued  under  the  (Cal.)  statute,  was 
assigned,  which  land  had  been  sold  under 
a  judgment,  though  the  time  of  redemp- 
tion had  not  expired.  The  vendor  made 
no  effort  to  mislead  the  vendee,  but  simply 
made  no  mention  of  the  judgment.  Held, 
the  means  of  information  being  open  to 
both  parties,  the  vendor's  silence  was  no 
fraud.     Ibid. 

The  following  case  is  found  in  a  late 
number  of  the  (Philadelphia)  "  Legal  In- 
telligencer," May  1,  18G8  :  — 

Error  to  the  District  Court  of  Phila- 
delphia. 

Opinion  by  Thompson,  C.J. 

"  No  question  was  raised  at  the  trial 
below  in  regard  to  the  remedy  by  eject- 
ment to  rescind  an  executed  sale  and  con- 
veyance for  cash  and  stock,  made  by  the 
plaintiff  below  to  the  defendants,  of  the 


premises  in  question,  on  the  ground  of 
fraud  in  a  part  of  the  consideration  paid 
therefor.  The  deed  and  possession  have 
both  passed  to  the  vendee  Riddle,  one  of 
the  defendants.  That  being  so,  no  point 
can  be  raised  now  on  the  subject.  The 
form  of  the  verdict  was  unobjectionable  if 
the  remedy  was  proper.  But  it  appears 
to  us  that  in  the  absence  of  all  proof  of 
representations  of  any  kind  at  the  sale, 
the  Court  should  have  instructed  the  jury 
that  if  the  stock  had  a  market  value  at  the 
time,  equal  or  nearly  so  to  its  exchanged 
value,  the  plaintiff  was  not  entitled  to  re- 
cover. Tlie  seller  was  not  shown  to  have 
represented  that  it  was  better  than  that, 
nor  that  it  would  range  higher.  He  was 
not  bound  to  assume  that  the  plaintiflf 
bought  it  to  hold ;  if,  therefore,  it  had  a 
market  value,  and  the  plaintiff  required 
no  guaranty,  asked  no  questions  about  it, 
the  presumption  is  one  not  to  be  gotten 
over  or  disregarded,  that  he  bought  on 
his  own  judgment,  and  must  abide  by  it. 

"  But  the  learned  judge  held  that  the 
defendant,  Riddle,  was  guilty  of  a  fraud  on 
the  company  in  aiding  in  putting  off  the 
land  on  it  for  $37,000  or  $38,000,  which 
cost  in  fact  but  about  .$15,000,  and  there- 
fore is  chargeable  with  the  sale  of  fraudu- 
lent stock  to  the  plaintiff.  How  does  it 
appear  that  he  did  not  tell  the  plaintiff  all 
about  the  premium  he  received  when  he 
sold  the  stock,  that  he  did  not  say  that  tlie 
company  had  taken  at  $38,000,  what  cost 
but  $15,000?  It  was  for  the  plaintiff  to 
make  out  fraud  if  there  was  fraud  in  the 
transaction. 

"  But  was  the  jury  to  assume  that  the 
fraud  in  the  price  of  the  land  was  the  rea- 
son the  stock  became  worthless  ?  It  was 
an  oil  company,  not  a  company  for  the  sale 
of  land,  and  unless  the  price  paid  showed 
that  the  land  was  not  oil  territory  at  all, 
a  mere  sham,  whicli  it  did  not,  I  see  not 
how  the  jirice  paid  by  the  company  could 
affect  the  stock  issued.  If  the  territory 
was  a  myth,  or  bogus,  it  should  have  been 
shown  in  order  to  have  had  any  effect  on 
the  transaction  between  the  plaintiff  and 
defendant.  But  this  does  not  seem  to  liave 
been  pretended.  Every  thing  shows  that 
it  was  believed  to  be  good  oil  territory 
when  bought.  It  was  in  the  midst  of  the 
oil  region,  if  I  understand  it.  It  nowhere 
appears  that  the  stock  went  down  because 
of  the  price  the  company  paid  for  the  ter- 
ritory. That  was  not  possible,  for  the 
territory  was  paid  for  by  it.  I  am  utterly 
at  a  loss,  therefore,  to  see  how  the  defend- 
ant is  to  answer  for  a  defect  which  he  did 
not  create.  The  loss  was  because  the  land 
turned  out  not  to  be  oil  territory,  and  not 
because  the  agents  made  a  speculation  — 
wrongfully  it  may  be  —  out  of  the  com- 


CHAP.    XXII.] 


FRAUD. 


3G5 


pany.  Tlie  stock  was  a  mode  of  division 
of  the  profits  to  be  made  out  of  the  oil ; 
l)ut  there  was  no  oil,  and  the  stock  would 
have  been  equally  worthless  as  stock  if 
the  land  had  not' cost  81,000  instead  of 
$37,000.  In  the  distribution  of  the  resid- 
uum of  the  company's  assets,  after  paying 
debts,  the  profit  wrongfully  made  by  the 
agents  out  of  the  comjiany  may  enter  into 
the  distribution  ;  but  that  it  attached  itself 
to  and  afiected  the  stock  was  not  shown. 
Fraud  must  be  proved,  either  by  ])ositive 
evidence  or  inference  from  circmnstances. 
Whatever  fraud  Mas  in  the  matter  of  prof- 
its to  the  agents,  is  a  matter  which  it  is 
for  the  company  to  redress ;  there  is  no 
privity  between  the  defendants  and  the 
stockholders  to  authorize  the  latter  to  sue 
them  individually,  and  the  case  of  Krira- 
mell  I'.  Stoner,  6  IlaiTis,  155,  and  Krim- 
mell  et  a!,  v.  Gosling,  2  Gr.  125,  are  no 
authority  for  tliis  doctrine.  It  is  manifest 
if  stockholders  might  sue,  either  the  first 
recoverj'  would  be  a  bar  to  all  others,  let 
the  sum  recovered  be  ever  so  inadequate 
to  the  mone3'  due  the  company  ;  or,  if  not 
a  bar,  and  all  others  might  sue,  amotmts 
greatly  in  excess  of  what  may  have  been 
received  might  be  recovered.  If  then, 
the  stock  was  not  worthless,  by  reason  of 
the  acts  of  the  defendant,  communicating 
an  inherent  defect  to  it,  as  I  think  I  have 
established  was  not  shown  by  the  testi- 
mony, where  was  the  fraud  in  selling  the 
stock  to  the  plaintiff?  No  representations 
were  made,  as  already  said,  of  its  present 
or  prospective  value,  known  to  be  fraudu- 
lent by  the  defendant ;  no  active  artifice 
to  impose  on  the  plaintiff.  7  Barr,  2'J3. 
The  case  stood  clear  of  all  this  on  the 
proof;  we  are  therefore  of  opinion,  as  the 
case  stood  on  the  testimony  in  the  court 
below,  the  Court  should,  in  the  absence  of 
evidence  of  fraudulent  representations  as 
to  the  value  of  the  stock  present  or  pro- 
spective by  the  defendant,  have  charged 
as  requested  in  the  defendant's  second 
point ;    to   wit,   '  That  if  the   stock   ex- 


changed with  money  for  the  land  (the 
liouse  anil  lot)  had  a  market  value  at  the 
time  equal,  or  nearly  so,  t(»  its  exchanged 
value,  there  is  no  injtny  to  the  plaintiff, 
and  he  cannot  recover.'  Aui\  for  the 
reasons  already  given,  we  think  also  that 
the  defendant's  third  point  should  have 
been  affirmed ;  namely,  '  That  fraud  in 
organizing  the  company  can  be  complained 
of  only  b}'  subscribers  to  the  company,' 
&c.,  not  by  parties  i)urcliasers  of  stock  in 
the  market,  —  the  stock  being  bond  Jide 
the  stock  of  the  comjiany. 

"  As  to  the  price  paid  bj'  the  company 
for  the  land,  nobody  was  deceived  about 
it,  if  they  had  chosen  to  inquire  about  it ; 
it  was,  imdeniabl}',  $38,000.  Tliey  should 
or  might  have  known  that.  Tliey  are, 
therefore,  to  be  presimied  to  have  bought 
stock  on  that  basis  of  capital. 

"  Because  the  company  may  have  paid 
more  than  they  ought  to  have  paid  by 
misrepresentations  or  by  the  management 
of  others,  that  did  not  affect  the  stock  as 
bond-fide  stock  of  the  company.  That 
would  not  authorize  holders  to  sue  the 
company  and  get  back  their  monej'.  The 
company  committed  no  fraud,  and  because 
it  may  have  been  wronged  in  regard  to 
the  value  of  its  property,  yet  if  it  defrauded 
nobody  it  could  not  be  made  liable,  nor  its 
stock  treated  as  a  nullity.  The  company 
has  a  right  to  proceed  to  recover  whatever 
was  wrongfully  taken  from  it,  and  it  can 
be  compelled  to  do  so ;  and  whatever  may 
be  recovered  will  be  assets  to  distribute  to 
the  stockholders  in  winding  up  the  con- 
cerns of  the  company.  But  it  is  the  com- 
pany which  must  look  to  that.  Upon  the 
whole,  we  see  no  evidence  whatever  in 
the  case  of  any  fraud  in  the  sale  of  the 
stock  in  question  by  the  defendant.  Rid- 
dle, to  the  plaintiff,  or  any  thing  to  show 
that  the  stock  itself  was  fraudulent. 

"Judgment  reversed,  and  judgment 
entered  for  the  defendants,  7ion  obstante 
veredicto." 

Sharswood,  J.,  dissented. 


366  LAW   OF   VENDORS   AND    PURCHASERS.       [CHAP.    XXIII. 


CHAPTER   XXIII. 

IMPLIED     OR     CONSTRUCTIVE    FRAUD.  —  INCAPACITY,   INADEQUACY    OF 
CONSIDERATION,   ETC. 

1.  Constructive  fraud.  8.     Inadequacy  of  consideration. 

2.  Mental  inability.  12.    Excess  of  consideration. 
5.     Drunkenness. 

1.  A  CONTRACT  for  the  sale  and  purchase  of  real  property  may- 
be avoided,  not  only  by  actual  but  by  constructive  fraud,  consisting 
for  the  most  part  in  the  personal  incapacity  of  one  of  the  parties, 
or  in  some  circumstance  of  the  case,  which  renders  it  harsh  or 
inequitable  to  enforce  the  contract.  It  will  be  seen,  that  this  class 
of  objections,  though  comprehending  those  which  in  name  and  form 
are  various,  has  still  a  common  character  running  through  the 
whole,  and  requiring  that  they  should  be  considered  together. 
Thus  inadequacy  of  consider ation  will  often  defeat  the  sale,  when 
combined  with  some  personal  disability,  although  of  itself  it  might 
not  produce  that  result.  And  the  same  may  be  said  of  contracts 
made  with  Tieirs^  or  with  those  holding  a  confidential  relation  to  the 
other  contracting  party.  (Chaps.  24,  25.)  Constructive  frauds 
are  defined  to  be  "  such  acts  or  contracts,  as,  although  not  origi- 
nating in  any  actual  evil  design  or  contrivance  to  perpetrate  a 
positive  fraud  or  injury  upon  other  persons,  are  yet,  by  their  ten- 
dency to  deceive  or  mislead  other  persons,  or  to  violate  private  or 
public  confidence,  or  to  impair  or  injure  the  public  interests,  deemed 
equally  reprehensible  with  positive  fraud,  and,  therefore,  are  pro- 
hibited by  law,  as  within  the  same  reason  and  mischief  as  acts  and 
contracts  done  malo  animo.^''^ 

2.  With  respect  to  mental  inability ,(^a)  as  a  ground  for  avoiding 
a  sale  or  purchase  of  real  estate,  the  law  enumerates  four  classes 
of  persons  as  no7i  compotes  mentis.     1.  an  idiot,  or  natural  fool ; 

1  1  Story,  Eq.  §  258. 

(a)  As  to  the  ancient  maxim    of  the    and  note  and  authorities  ;   Thornton  v. 
law,  that  "  no  man  shall  be  permitted  to    Appleton,  29  Maine,  298. 
stultify  himself,"  see  1  Pars,  on  Contr.  310, 


CHAP.    XXIII.]  INCAPACITY,   ETC.  367 

2.  one  who  was  of  good  and  sound  nienioiT,  but  l>y  the  visitation 
of  God  has  lost  it ;  3.  a  lunatic,  one  who  has  lucid  intervals,  being 
sometimes  of  good  and  sound  memory,  sometimes  not ;  4.  a  non 
compos  by  his  own  act,  such  as  a  drunkard.^ 

3.  Mental  incapacity  must  of  course  be  affirmativchj  and  distinctly 
proved,  in  order  to  avoid  a  sale.  Thus,  that  the  intellectual  ca- 
pacity of  one  of  the  parties  to  a  contract  is  below  that  of  the  aver- 
age of  mankind,  does  not  alone  furnish  sufficient  ground  for  setting 
aside  the  contract.^  So  a  contract  is  not  invalid,  if  made  by  a 
man  in  the  habit  of  buying  and  selling,  and  transacting  his  own 
business,  merely  because  he  was  illiterate,  unless  he  has  been 
grossly  deceived  or  fraudulently  imposed  on.^  But  those,  who 
from  iml)ecility  of  mind  are  incapable  of  taking  care  of  themselves, 
are  under  the  special  protection  of  the  law  ;  and  a  contract  entered 
into  by  one  of  weak  understanding,  more  especially  if  superin- 
duced by  undue  influence(a)  or  misrepresentation,  will, upon  ap- 
plication of  the  deceived  party,  be  set  aside  by  a  Court  of  Equity.* 
Thus  equity  will  annul  a  contract  for  the  purchase  of  land,  obtained, 
by  the  fraudulent  practice  of  the  vendor,  from  a  man  whose  faculties 
were  greatly  impaired,  and  when  he  was  without  the  counsel  of 
friends.^  So  a  stipulation  procured  by  one  party  from  the  other, 
while  his  mind  was  incapable  of  rational  volition,  either  by  reason 
of  unsoundness,  or  of  illegal  and  unjust  constraint,  ought  to  be 
dissolved  by  a  Court  of  Equity,  as  wanting  the  assent  of  the  party, 
unless  ratified  and  confirmed  while  the  mind  was  sound  and  free 
to  act.^ 

4.  A  contract  for  the  sale  of  land,  made  by  one  who  had  been 
adjudged  a  lunatic,  is  held  absolutely  void,  and  no  action  can  be 
maintained  to  enforce  it ;  nor  can  the  committee,  to  whom  the  care 
of  his  estate  has  been  intrusted,  by  any  act  of  his,  make  such  a  con- 
tract good.''     But  although  sales  at  a  great  undervalue,  from  one 

1  Beverley's  case,  4  Co.  124  ;  Co.  Lit.  «  Taylor  v.  Patrick,  1  Bihb,  168 ;  Euth- 
247  a.     See  Boyce  v.  Smith,  9  Gratt.  704,     erford  v.  Ruff',  4  Desaus.  350. 

as  to  monomania.  "!  Fitzhugh   i\  Wilcox,   12  Barb.   235. 

2  Mann  v.  Betterly,  21  Verm.  32G.  See  Donald  v.  Morton,  1  Mass.  543; 
See  Farnam  v.  Brooks,  9  Pick.  220.  White  v.  Palmer,  4  ib.   147  ;  Leonard  v. 

3  Rodman  ;;.  Zilley,  1  Saxt.  Ch.  320.    .  Leonard,    14   Pick.    280 ;    Gaugmore,    14 

4  Craddock  v.  Cabiness,  1  Swan,  474 ;  Penn.  417 ;  M'Creight  v.  Aiken,  1  Price, 
Seeley  v.  Price,  14  Mich.  541.  15G. 

5  Garrow  v.  Brown,   1  Wins.   (N.C.) 
No.  2  (Eq.)  46. 

(a)  As  in  case  of  undue  influence  on  relation  to  the  vendee.  Rhodes  v.  Bate, 
the  part  of  one  sustaining  a  confidential    Law  Rep.  (Eng.)  Eq.  March,  1866,  p.  252. 


368  LAW    OF    VENDORS    AKD    PURCHASERS.       [CHAP.   XXIII. 

that  was  afterwards  a  lunatic,  were  set  aside,  the  conveyances  were 
decreed  to  stand  as  a  security  for  what  was  really  paid.^  And 
where  a  bill  is  filed  to  set  aside  a  purchase  made  by  a  lunatic,  and, 
upon  the  report  of  the  clerk  and  Master,  it  appears  that  the  price 
was  not  grossly  extravagant,  and  that  the  lunatic  has  not  power 
to  make  compensation  if  the  contract  should  be  set  aside  ;  the  bill 
will  be  dismissed.^  So  the  plaintiff  contracted  for  the  purchase 
of  an  estate  from  the  defendant,  and  paid  a  deposit,  on  the  terms 
that,  unless  he  objected  to  the  title  within  a  certain  time,  it  should 
be  considered  as  accepted.  No  objection  was  made  by  him  to  the 
title.  The  plaintiff,  at  the  time  of  the  contract  and  of  the  payment 
of  the  deposit,  was  a  lunatic,  incapable  of  understanding  the  mean- 
ing of  a  contract,  or  of  managing  his  affairs,  and  derived  no  benefit 
from  the  contract ;  but  these  facts  were  unknown  to  the  defendant, 
who  made  the  contract  with  him  fairly  and  bond  fide,  believing  him 
capable  of  understanding  its  meaning.  Held,  the  plaintiff  was  not 
entitled  to  recover  the  deposit.^ 

5.  Another  form  of  mental  incapacity  is  drunkenness.  As  a 
principle  of  criminal  law,  subject  perhaps  to  occasional  exceptions 
or  qualifications,  drunkenness  is  held  to  be  no  excuse  or  justifica- 
tion for  crime  ;  and  indeed  is  sometimes  said  rather  to  aggravate 
than  extenuate  an  offence  against  law.  Upon  tlie  same  principle, 
drunkenness  is  regarded  as,  in  general,  a  less  substantial  ground 
for  avoidiyig  contracts,  than  any  form  of  mental  imbecility,  not  the 
result  of  the  party's  own  act.  Still,  however,  equity  will  relieve 
against  contracts  made  by  a  person  when  drunk,  if  procured  by  any 
fraud  or  imposition,  or  even  without  this  accompaniment,  in  case 
of  excessive  drunkenness,  where  the  party  is  utterly  deprived  of  the 
use  of  his  reason  and  understanding.  So  also,  where  he  has  been 
drawn  into  drink  by  some  contrivance  or  management.  In  other 
cases,  the  parties  will  be  left  to  their  rights  and  liabilities  at  laiv.'^Qi) 
In  general,  a  contract  is  voidable  only  for  drunkenness.^ 

1  Addison  v.  Dawson,  2  Vera.  678.  Smith,  3  Camp.  33  ;  Dorr  v.  Munsell,  13 

'■^  Carr  v.  Holliday,  5  Ired.  Eq.  167.  Jolnis.  480  ;  Seymour  v.  Delancy,  8  Cow. 

3  Beavan  v.  M'Donnell,  24  Eug.  Law  445 ;  Barrett  v.  Buxton,  2  Aik.  167  ;  Mor- 

&  Eq.  484.  rison  v.  M'Leod,  2  Dev.  &  Bat.  221 ;  Ford 

*  Beverley's  case,  4  Co.  124 ;   3  Bac.  v.  Hitchcock,  8    Ohio,  214 ;    Conant    v. 

Abr.  Idiots,  &c.  A. ;  Johnson  v.  Medlicott,  Jackson,     16    Verm.     335 ;    Prentice    v. 

3  P.  Wms.  130 ;  Cook  v.  Clay  worth,  18  Achorn,  2  Paige,  30. 

Ves.  12 ;  Cory  v.  Cory,  1  Ves.  19 ;  Pitt  v.  &  Broadwater  v.  Darne,  10  Mis.  277. 

(a)  "  Where  the  party,  when  he  enters  drunkenness  as  not  to  know  what  he  is 
into  the  contract,  is  in  such  a  state  of    doing,  and  particularly  when  it  appears 


CHAP.    XXIII.]  INCAPACITY,    ETC.  3G9 

6.  More  especially,  if,  when  a  man  is  so  drunk  as  to  render  liini 
an  easy  prey  to  the  fraudulent  designs  of  another,  an  unfair  advan- 
tage is  taken  of  his  situation  to  procure  from  him  an  unreamnahle 
bargain^  equity  will  rescind  the  contract,  not  on  the  ground  of  his 
drunkenness,  but  of  the  fraud.^  So  a  contract  may  be  avoided  by 
the  legal  representatives  of  a  party,  on  the  ground  of  his  having 
been  drunk  when  it  was  made,  though  such  drunkenness  was  not 
occasioned  by  the  procurement  of  the  other  party .^  Thus  A.  and  B., 
tenants  in  common  of  a  lot  of  land,  contracted  separately  with  C. 
to  convey  to  him  all  their  interest  therein,  on  the  payment  to  each 
of  them  of  $300.  The  money  being  paid,  possession  was  delivered 
to  C,  who,  after  the  death  of  A.  and  B.,  filed  a  bill  in  chancery 
against  D.,  their  heir,  for  specific  performance.  D.  by  her  answer 
alleged,  that  both  A.  and  B.  were  in  habits  of  intemperance,  and 
almost  constantly  in  a  state  of  intoxication  ;  that  the  contract  was 
made  by  them  when  in  a  state  of  intoxication,  or  when  they  were 
incapable  of  transacting  business,  at  a  price  greatly  below  its  value, 
<fec.  Decreed,  that  D.  convey  to  C.  one  undivided  part  of  the  lot ; 
but,  as  to  the  contract  of  B.,  on  account  of  the  satisfactory  proof  of 
his  imbecility,  it  ought  not  to  be  enforced  ;  and  that  C.  deliver  to 
D.  or  permit  her  to  take  or  enjoy,  the  other  undivided  parts  of  the 
lot,  without  her  refunding  the  consideration  paid  by  C.  to  B.^ 

7.  But  where,  in  a  suit  for  the  specific  performance  of  an  agree- 
ment, the  principal  defence  set  up  was  incapacity  at  the  time  of 
executing  it,  on  the  ground  of  intoxication  ;  the  Court  held,  that  it 
could  not  assist  in  getting  rid  of  the  agreement,  on  the  mere  ground 
of  intoxication,  no  fraud  being  alleged ;  but  decreed  a  specific  per- 
formance with  costs.^  So  it  is  held,  that  intoxication  of  a  contract- 
ing party  is  no  ground  for  setting  aside  the  contract,  where  it  was 
not  induced  by  the  other  party,  unless  it  is  habitual,  so  as  to  derange 
the  mind,  or  subject  it  to  frequent  fits  of  derangement,  or  is  so  great 

1  Calloway  v.  Witherspoon,  5  Ired.  Eq.  ^  Reinickcr  v.  Smith,  2  liar.  &  John. 
128.  421. 

2  Wigglesworth  v.  Steers,  1  Hen.  &  *  Shaw  v.  Thackray,  23  Eng.  Law  & 
Munf.  70.  Eq.  18. 


that  is   known   to   the   other   party,  the  qualified  the  old  doctrine,  that  a  man  shall 

contract  is  void  altogether,  and  he  cannot  not  be  allowed  to  allege  his  own  lunacy 

be  compelled   to   perform  it.     A  person  or  intoxication,  and  total  drunkenness   is 

who    takes   an   obligation   from   another  now  held  to  be  a  defence."     Per  Parke, 

under  such  circumstances  is  guilty  of  act-  B.,  Gore  v.  Gibson,  13  M.  &  W.  G23. 
ual  fraud.     The  modern  decisions  have 

24 


370  LAW    OF   VENDORS   AND    PURCHASERS.        [CHAP.    XXIII. 

as  to  deprive  the  party  of  his  reason.^  So,  that  the  vendee's  being 
intoxicated  at  the  time,  and  not  in  a  situation  to  judge  correctly,  or 
act  with  prudence,  will  not  avail  him  to  avoid  the  contract,  unless 
he  can  show  that  it  was  procured  by  the  contrivance  of  the  vendor, 
or  that  an  unfair  or  improper  advantage  was  taken  of  his  situa- 
tion.2     (§  5.) 

8.  We  have  already  had  occasion  (ch.  3)  to  consider  the  subject 
of  consideration,  as  an  element  in  the  sale  of  real  property,  necessary 
to  the  validity  of  this,  as  of  other  contracts.  It  now  becomes  neces- 
sary —  assuming  some  consideration  to  exist  —  to  consider  its 
amount,  either  by  way  of  deficiency  or  excess,  as  affecting  the 
validity  of  the  contract. (a) 

9.  Inadequaci/  of  consideration,  though  not,  in  general,  of  itself  a 
sufficient  ground  for  avoiding  a  contract,  is,  when  gross,  strong 
evidence  of  fraud^  and  may  be  so  great  as  to  form  a  ground  for 
cancelling  the  contract.*  Thus,  although  mere  inadequacy  of  con- 
sideration furnishes  no  sufficient  ground  for  the  interference  of  a 
Court  of  Equity  to  set  aside  a  contract ;  inadequacy  of  considera- 
tion, united  with  such  a  degree  of  weakness  and  imbecility  of  intel- 
lect, as  would  justify  the  inference  that  such  weakness  had  been 
taken  advantage  of,  will  afford  sufficient  ground  for  this  inter- 
ference.^(^)     More  especially  an  agreement  made  for  a  considera- 

1  Hutchinson    v.    Brown,     1     Clarke,     Coles  v.  Trecothick,  9  Ves.  234. 
408.  4  Stilhvell  v.  Wilkins,  Jac.  282. 

2  Rodman  v.  Zilley,  1  Saxton,  320.  5  Mann  v.  Betterly,  21  Verm.  326. 
^  Lowtlier    v.  Lovvther,  13  Ves.    95; 

(a)  In  remarking  upon  the  subject  of  meant  by  surprise  ;  for  a  man  may  be  said 

mistake,  we   briefly  referred   to  the  kin-  to  be   surprised  in  every  action  which  is 

dred  point  of  surprise,  as  invalidating  a  not  done   with  so  much  discretion  as  it 

sale  of  real  property.     Perhaps   surprise  ought  to  be.     The  surprise  here  intended 

may  be  considered  to  have  a  more  direct  must  be  accompanied  with  fraud  and  cir- 

bearing   upon  the  price  or  consideration  cumvention  ;  or,  at  least,  by  such  circum- 

than  any  other  part  of  the  transaction  ;  stances  as  demonstrate  that  the  party  had 

and  the  following  remarks  of  an  approved  no  opportunity  to  use  suitable  delibera- 

writer  may  therefore  properly  be  cited  in  tion,  or  that  tliere  was  some  influence  or 

this  connection:  "  Cases  of  surprise  and  management  to  mislead  him."     1  Story, 

sudden  action,  without  due  deliberation,  Eq.  §  251  ;  1  Fonb.  Eq.  B,  1,  ch.  2,  §  8. 
may  properly  be  referred  to  the  same  head  (/;)  An  agreement  was  made  with  the 

of  fraud  and  imposition.     An  undue  ad-  defendants,  being  old,  to  buy  their  farm 

vantage  is  taken  of  the  party,  under  cir-  for  $11,000,  —  $1,000  down,  tiie  rest  in  ten 

cumstances   which   mislead,   confuse,    or  years.     The  deed,  on  part-payment,  to  be 

disturb  the  just  rfesult  of  his  judgment,  made,  and  a  mortgage  for  the  balance.    In 

and  thus  expose  him  to  be  the  victim  of  case  of  a  sale  of  part,  a  release  of  that  part 

the  artful,  the  importunate,  and  the  cun-  to  be  given  on  receiving  payment  in  pro- 

ning.     It  is  not  every  surprise  which  will  portion.      Bill  for    specific    performance, 

avoid  a  deed  duly  made.    Nor  is  it  fitting.  Answer,  that  one  acre,  including  buildings, 

for  it  would  occasion  great  uncertainty  ;  was  to  be  excepted.     Denial  of  this  state- 

and  it  would  be  impossible  to  fix  what  is  ment ;  and,  no  such  exception  appearing 


CHAP.    XXIII.]  INCAPACITY,    ETC.  371 

tion  grossly  inadequate,  by  one  of  great  imbecility  of  mind,  with 
another  whose  position  in  relation  to  him  conferred  undue  influence 
and  control  over  him,  will  be  set  aside. ^  And,  in  a  very  late  Eng- 
lish case,  it  is  said  that  equity  interferes,  "  wlicnever  two  persons 
stand  in  such  a  relation,  that,  while  it  continues,  confidence  is 
necessarily  rejiosed  by  one,  and  the  influence  which  naturally  grows 
out  of  that  confidence  is  possessed  by  the  other,  and  this  coiihdcnce 
is  abused,  or  the  influence  is  exerted  to  obtain  an  advantage  at  the 
expense  of  the  coniiding  party."  (Per  Lord  Chelmsford,  L.C.^)  So 
suspicion  of  fraud,  coupled  with  gross  inadequacy  of  price,  and  the 
pressure  of  pecuniary  embarrassment,  is  sufficient  ground  to  rescind 
a  sale;^  as  where  the  complainant,  who  was  in  embarrassed  circum- 
stances, his  property  being  levied  on,  and  about  to  be  sold  under 
execution,  sold  his  farm  to  the  defendant,  received  part  of  the 
price  in  cash,  and  for  the  residue  accepted  a  deed  of  land  in  another 
State,  which  he  had  never  seen,  and  which  was  not  worth  more  than 
one-half  of  the  estimated  amount.*  So  a  contract  Avill  be  set  aside 
ill  equity  for  inadequacy  of  consideration,  where  there  is  inequality 
in  the  condition  of  the  parties.^  So,  where  an  unconscientious 
advantage  is  taken  by  the  vendee  of  tlie  hnprovidenee  and  distress  of 
the  vendor  ;  inadequacy  of  price,  whether  so  gross  as  to  be  jjer  se 
proof  of  fraud  or  not,  will  in  equity  avoid  even  an  executed  con- 
tract.*^ And  inadequacy  of  price  alone,  when  the  vendor  did  not 
understand  the  contract,  or  was  induced  to  make  it  to  escape 
oppression,  will  vitiate  the  sale,  whether  these  facts  appear  from  the 
inadequacy  itself  or  otherwise.''  Thus  a  sale  of  land  at  a  halfpenny 
for  every  square  yard,  which  the  vendee  knew  to  be  not  one-fourth 
part  of  the  value,  was  held  fraudulent  and  void  in  equity.*^  So  the 
purchase  of  an  estate  of  a  tenant  for  life,  who  was  outlawed  and 
absconded,  was  set  aside  in  favor  of  creditors,  being  made  at  an 
undervalue,  and  pending  the  prosecution  at  law  against  him,  and 
with  notice  thereof.^  So  relief  was  given  against  a  sale,  where  the 
purchaser  knew  that  the  vendors,  the  assignees  of  a  bankrupt,  were 

1  Cook  V.  Cole,  2  Ilalst.  Ch.  522.  5  George  v.  Ricliarclson,  Gilmer,  231. 

2  Tate  V.  Williamson,  Law  Rep.  (Eng.)  6  M'Kinney  v.  rinchard,  2  Leigli,  149. 
Eq.  February,  1867,  p.  59.                                     ^  Cruise  v.  Cliristoi)lier,  5  Dana,  182. 

^  Lester  v.  Malian,  25  Ala.  445.  8  Deane  v.  Rastron,  1  Anstr.  (J4. 

*  Ibid.  9  Heme  v.  Meers^  1  Vern.  465. 

in  the   agreement,   the  contract  did  not  the  reservation  was  valid  or  not,  the  agree- 

bind  the  plaintiff  personally.     The  defend-  ment   was    unconscionable,    and   specific 

ant  refused  to  give  a  deed,  but  with  tiie  performance   was  refused.     Chambers  v. 

reservation  of  one  acre.     Held,  whether  Livermore,  15  Mich.  381. 


372  LAW    OF   VENDORS    AND    PURCHASERS.        [CHAP.    XXIII. 

ignorant  of  a  circumstance  considerably  increasing  the  value.^  So 
where,  on  a  bill  to  set  aside  a  purchase,  the  answer  of  the  defend- 
ants, the  devisees  of  the  purchaser,  admitted  great  inadequacy  of 
price,  and  stated  their  ignorance  as  to  other  circumstances  of  fraud 
alleged  ;  a  receiver  was  appointed.^  So  A.,  a  young  man  of  twenty- 
three,  entitled  to  a  moiety  of  an  estate,  the  whole  of  which  yielded 
about  £4:4:0  per  annum,  under  pressure  of  his  college  debts,  of 
about  X  1,000,  and  being  estranged  from  his  father,  wrote  to  B., 
his  great-uncle,  for  advice  and  aid.  B.  deputed  C,  the  defendant,  his 
nephew,  to  see  A.  on  the  subject.  By  appointment,  C.  met  A.,  who 
forbade  any  attempt  at  compromise,  and  proposed  to  sell  his  estate  ; 
whereupon  C.  offered  him  for  it  X 7,000,  by  instalments.  The 
next  day,  A.  accepted  the  offer.  Before  the  signing  of  an  agree- 
ment, C.  procured  a  valuation  by  a  surveyor,  appraising  the  mines 
under  the  whole  estate  at  <£ 20,000,  but  did  not  communicate  it  to 
A.  Upon  a  bill  brought  by  the  heir  of  A.  to  avoid  the  sale  ;  held, 
it  should  be  set  aside. ^ 

10.  It  may  be  gathered  from  the  general  current  of  authorities 
upon  this  subject,  that,  although  a  Court  of  Equity  may  refuse  to 
enforce  an  agreement  for  inadequacy  of  consideration,  yet  the  inad- 
equacy must  be  so  great,  gross,  and  palpable  as  to  be  evidence, 
perhaps  even  conclusive  evidence,  of  fraud,  or  some  unconscien- 
tious advantage ;  and,  in  settling  this  point,  the  condition  and 
circumstances  of  the  estate  at  the  time  of  sale  are  to  be  the  criterion.^ 
And  it  is  held  that  relief  will  be  granted  in  equity,  only  where  the 
inadequacy  is  so  extreme,  as  to  satisfy  the  Court  that  there  must 
have  been  imposition  or  oppression.^  There  must  have  been  unrea- 
sonableness^ inequality,  and  hardship  ;  as  where  the  price  amounted 
to  but  one-half  the  value  of  the  estate.^  Weakness  and  indiscretion 
are  said  not  to  be  sufficient,  nor  even  a  hard  and  unconscionable 
bargain,  to  set  aside  the  sale,  unless  fraud  or  undue  means  have 
been  used."  The  bargain  must  be  such,  it  is  said,  "  that  it  must 
be  impossible  to  state  it  to  a  man  of  common  sense,  without  pro- 


1  Turner  v.  Harvey,  Jac.  169.  19  Ala.  765  ;  White  v.  Flora,  2  Tenn.  426  ; 

2  Stilhvell  V.  Wilkins,  Jac.   280.     See  January  v.  Martin,  1  Bibb,  586. 
Maddeford  v.  Austuripk,  1  Sim.  89.  ^  Underhill  v.  Horwood,  10  Ves.  209 ; 

3  Tate  V.  Williamson,  Law  Rep.  (Eng.)  14  Ves.  28. 

Eq.  February,  1867,  p.  55.  '^  Seymour  v.  Delancey,  6  Johns.  Ch. 

*  Fripp  V.  Fripp,  Rice,  Eq.  84 ;  Osgood  222. 

V.  Franklin,  2  Johns.  Ch.  1 ;  Western  v.  7  l    Sugd.   367-8.     See  2    Story,  Eq. 

Russell,  8  Ves.  &  B.  187 ;  Judge  v.  Wilkins,  §  235. 


CHAP.    XXIII.] 


INCAPACITY,    ETC. 


373 


ducing  an  exclamation  at  tlie  inequality  of  it."^  So  it  is  held,  that, 
unless  the  inadequacy  is  so  great  as  to  shock  the  moral  sense  of  an 
indifferent  man,  the  contract  being  entered  into  deliberately  and 
fair  in  all  its  parts,  such  inadequacy  is  not  an  objection  to  its  being 
executed.^  Tlius  wliere  no  fiduciary  relation  exists,  and  there  is 
no  evidence  of  fraud,  a  conveyance  will  not  be  set  aside,  although 
the  consideration  was  very  inadequate,  and  the  vendor  was  an 
infirm  old  man,  acting  without  professional  advice,  and  although 
the  deed  failed  to  secure  to  him  the  benefits  for  whicli  he  had  stip- 
ulated, as  the  consideration.  In  such  a  case,  the  burden  of  proof 
lies  upon  the  party  impeaching  the  validity  of  the  deed.^  While,  on 
the  other  hand,  where  the  purchaser  was  the  family  physician  of 
the  vendor,  who  was  afflicted  with  a  chronic  disease,  and  the  ven- 
dor's title  was  uncertain,  and  the  vendee  was  obliged  to  pay  a 
large  sum  to  perfect  his  title  ;  it  was  held  that  the  sale  was  not 
fraudulent,  from  undue  influence,  particularly  as  the  consideration 
appeared  to  have  been  adequate.*  And  a  sale  under  a  deed  of 
trust  will  not  be  disturbed  for  inadequacy  of  consideration,  unless 
sufficient  to  constitute  fraud.^(«).     So  it  was  held,  that  an  agree- 


1  Per  Lord  Thurlow,  Gwynne  v.  Hea- 
ton,  1  Bro.  1. 

^  Seymour  v.  Delancey,  3  Cow.  445. 


(a)  The  following  remarks  of  an  Eng- 
lish Judge  may,  perhaps,  be  considered 
as  expressing  the  general  doctrine,  both 
of  law  and  equity,  upon  this  subject: 
"  The  law  will  not  assist  a  man  who  is 
capable  of  taking  care  of  his  own  interest, 
except  in  cases  where  he  has  been  imposed 
upon  by  deceit,  against  which  ordinary 
prudence  could  not  jirotect  him.  If  a  per- 
son of  ordinary  understanding,  on  whom 
no  fraud  has  been  practised,  makes  an 
imprudent  bargain,  no  court  of  justice  can 
release  him  from  it.  Inadequacy  of  con- 
sideration is  not  a  substantial  ground  for 
setting  aside  a  conveyance  of  property  ; 
indeed,  from  the  fluctuation  in  prices, 
owing  principally  to  the  gambling  spirit 
of  speculation  that  unhajipily  now  prevails, 
it  would  be  difficult  to  determine  what  is 
an  inadequate  price  for  any  thing  that  is 
sold ;  at  the  time  of  the  sale,  tlie  buyer 
probably  calculates  on  a  rise  on  the  value 
of  the  article  bought,  of  which  he  would 
have  the  advantage ;  he  must  not  there- 
fore complain  if  his  speculations  are  dis- 
appointed, and  he  becomes  a  loser  instead 
of  a  gainer  by  his  bargain.  But  those, 
who  from  imbecility  of  mind  are  incapable 


3  Harrison  v.  Guest,  35  Eng.  Law  & 
Eq.  487. 

4  Doggett  V.  Lane,  12  Mis.  215. 

5  Barker  r.  Anderson,  35  111.  68. 

of  taking  care  of  themselves,  are  under 
the  special  protection  of  the  law.  If  tliis 
conveyance  could  be  impeached  on  the 
ground  of  the  imbecility  of  Fitzsimmons 
only,  a  sufficient  case  has  not  been  made 
out  to  render  it  invalid  ;  for  the  imbecility 
must  be  such  as  would  justify  the  jury, 
under  a  commission  of  lunacy,  in  putting 
his  property  and  person  under  the  protec- 
tion of  the  chancellor  ;  but  a  degree  of 
weakness  of  intellect,  tiir  below  that  which 
would  justify  such  a  proceeding,  coupled 
with  other  circumstances,  to  show  that  the 
weakness,  such  as  it  was,  had  been  taken 
advantage  of,  will  be  sufficient  to  set  aside 
any  important  deed."  I'er  Lord  Wynford. 
Blachford  v.  Christian,  1  Kna])p,  77. 

So  it  is  said,  if  a  person  will  enter  into 
a  hard  bargain  with  his  eyes  open,  equity 
will  not  relieve  him  upon  this  footing  only. 
Willis  v.  Jernegan,  2  Atk.  251.  And,  with 
reference  to  this  point,  of  iiiadeijuacy,  "  If 
Courts  of  Equity  were  to  unravel  ail  these 
transactions,  they  would  throw  every 
thing  into  confusion,  and  set  afloat  the 
contracts  of  mankind."  Per  Eyre,  C.B., 
Griffith  V.  Spratley,  1  Cox,  383. 


374  LAW    OF   VENDORS    AND    PURCHASERS.        [CHAP.    XXIII. 

ment  for  the  sale  and  assignment  of  a  present  interest  in  a  consid- 
erable property  shonld  not  be  set  aside  on  the  ground  of  mere 
inadequacy  of  price,  where  there  had  been  no  fraud,  concealment, 
or  misrepresentation,  where  the  parties  were  adults,  and  the  ven- 
dors knew  as  much  of  the  property  and  its  situation  and  value  as 
the  purchaser.^  So,  where  a  transaction  of  many  years'  standing 
was  sought  to  be  set  aside  on  the  ground  of  inadequacy  of  consid- 
eration, the  relation  between  the  parties,  and  the  incapacity  of  the 
vendor ;  relief  was  refused,  neither  of  the  grounds  having  been 
sufficiently  made  out.^  So,  although  a  bill  for  specific  performance 
of  a  purchase  by  auction  was  dismissed  by  Lord  Rosslyn  with  costs, 
merely  as  being  a  bad  bargain,  from  inadequacy  of  value  ;  upon  a 
rehearing,  Lord  Eldon  was  of  opinion  that  this  was  not  a  sufficient 
ground  for  refusing  specific  performance  of  a  purchase  by  auction, 
without  something  more,  as  fraud  or  surprise,  &g.^ 

11.  It  is  to  be  observed,  that  a  sale  may  sometimes  be  attended 
by  circumstances,  which  will  constitute  a  good  defence  against  a 
bill  in  equity  for  specific  performance,  while  at  the  same  time  they 
would  not  furnish  sufficient  ground  for  rescinding  the  contract. (a) 
Thus,  although  mere  inadequacy  of  price  is  not  sufficient  ground 
for  setting  aside  a  sale,  unless  the  inadequacy  be  so  gross  as  to  be, 
of  itself,  evidence  of  fraud  ;  still  it  may  be  a  sufficient  ground  for 
refusing  to  enforce  specific  performance  of  the  sale.*  It  is  said, 
Courts  of  Equity  seldom  interfere  to  set  aside  contracts  of  sale,  on 
the  ground  of  inadequacy  of  price.  They  leave  the  parties  to  their 
legal  remedies.  But  when  called  on  to  enforce  a  contract,  they 
examine  into  the  consideration  to  be  given,  its  fairness  and  equality, 
and  all  the  circumstances  connected  with  it ;  and  if  any  thing 
manifestly  inequitable  appear  in  that  part  of  the  transaction,  they 
will  never  lend  their  power  to  carry  the  contract  into  execution.^ 
So  the  principle  is  laid  down,  that  an  unexecuted  sale  of  land  will 
not  be  enforced  in  equity,  if  it  seems  unconscionable.  But,  after  it 
has  been  executed,  a  chancellor  will  not  interfere,  by  declaring 
it  void  for  that  reason  alone,  except  in  the  case  of  an  heir  expect- 
ant.^  So  the  Court  refused  to  decree  specific  performance  of  a  sale, 

1  Gregor  v.  Duncan,  2  Desaus.  636.  *  Osgood  v.  Franklin,  2  Johns.  Ch.  1, 

2  Evans  v.  Brown,  Wight,  102.  23. 

3  White  V.  Damon,  7  Ves.  30.     (See  a         ^  Rodman  v.  Zilley,  1  Saxt.  320. 
criticism  upon  this  case,  in  Seymour  v.         ^  Davidson  v.  Little,  22  Penn.  245. 
Delancey,  6  Johns.  Ch.  222.) 

(a)  ^QQ  Rescinding ;  Specijic  Performance. 


CHAP.    XXIII.]  INCAPACITY,    ETC.  375 

where  the  inadequacy  of  price  was  very  great,  though  there  was  no 
direct  fraud  or  imposition ;  the  seller  being  a  young  man,  just  of 
age,  ignorant  of  the  real  value  of  the  land,  and  having  acted  some- 
what precipitately,  on  being  urgcd.^  So  it  is  held,  that,  although 
mere  inadequacy  of  price  is  not  a  sufficient  ground  for  equity  to 
refuse  its  assistance ;  yet,  if  an  unreasonahle  contract  be  not  per- 
formed according  to  its  letter,  equity  will  not  interfere ;  and 
this  whether  it  was  unreasonable  when  made,  or  becomes  so 
afterwards,  through  fault  of  the  plaintiff;  as  whore  a  very  great 
change  occurs  in  the  value  of  the  property,  through  the  vendor's 
fault.^ 

12.  While  a  veiidor  may  be  prejudiced  and  claim  relief  by  reason 
of  inadequacy  of  consideration,  the  vendee,  on  the  other  hand,  may 
seek  redress  on  account  of  excess  in  the  price  paid  or  agreed  to  be 
paid.  It  is  sometimes  hold,  that  excess  of  price  over  value,  if 
the  contract  be  free  from  imposition,  is  not  of  itself  sufficient  to 
prevent  a  decree  for  specific  performance  ;  but  is  an  ingredient 
which,  associated  with  others,  will  contribute  to  prevent  the  inter- 
ference of  a  Court  of  Equity .^(a)  But  it  is  also  held,  that,  wbere  a 
written  agreement  is  entered  into  for  the  purchase  of  an  estate  at  a 
price  far  beyond  its  value,  but  without  any  circumstances  of  fraud 
or  surprise,  the  Court  will  not  decree  a  specific  performance ; 
but,  on  the  other  hand,  will  not  rescind.^-  But  where  a  person 
deeply  in  debt,  in  order  to  obtain  a  loan  of  money,  agreed  to  pur- 
chase a  tract  of  land  at  more  than  double  its  value,  and  give  a 
mortgage  upon  other  property  to  secure  the  loan,  and  part  of  the 
purchase-money,  the  vendor  having  notice  of  the  purchaser's  neces- 
sities ;  held,  equity  would  rescind  the  contract.'^(6) 

1  Clitherall  v.  Ogilvie,  1  Desaus.  250.  ■»  Day  v.  Newman,  2  Cox,  77. 

2  Garnett  v.  Macon,  6  Call,  308.  ^  Hough  v.  Hunt,  2  Ham.  502. 
^  Cathcart  v.  llobinson,  5  Pet.  264. 

(a)  In  case  of  an  attempt  by  a  grantee  more   especially   in   a   case   of  exchamje. 

to  avoid  the  conveyance  as  unconsciona-  Park  v.  Johnson,  Mass.  S.J.C.,  Law  Reg. 

ble,  from  the  excess  of  the  consideration,  January,  1868,  p.  180. 
or  because  there  was  a  gross  mistake  of  {b)   Cases  often  occur,  in  which  there 

all  the  parties  with  respect  to  the  condl-  is  a   combination  of  circumstances,  any 

tion  an<l  value  of  the  estate  ;  it  was  said,  one  of  which  would  tend  to  invalidate  the 

the   difference   must   be   such   as    would  sale,  though  not  of  itself  sufficient  to  pro- 

"  sliock  all  men  of  common  intelligence  duce  that  effect ;  but  which,  when  united, 

at  first  blush,  and  bo  itself  a  proof  of  fraud  constitute  a  constructive  fraud,  that  ren- 

or  management  on  the  part  of  the  grant-  ders  the  contract  voidable.     Thus  specific 

ors."     Per  Parker,  C.J. ,  Allen,.  15  Mass.  performance  of  an  agreement  was  refused, 

65.     The  price  must  be  unconscionable,  on  the  ground  of  the  want  of  specific  niu- 


376 


LAW    OF   VENDORS    AND    PURCHASERS.        [CHAP.    XXIII. 


tuality,  of  laches,  misapprehensions  in  the 
party  or  parties  of  its  nature  and  effect, 
inequality,  improvidence,  and  other  cir- 
cumstances appearing  in  the  case.  Ham- 
ilton V.  Grant,  3  Dow.  33.  So  specific  per- 
formance was  refused  of  a  contract  improv- 
idently  entered  into  by  ignorant  persons. 
Martin  v.  Mitchell,  2  Jac.  &  Walk.  413. 
But  specific  performance  was  decreed  in 


favor  of  a  purchaser,  though  no  solicitor 
acted  for  the  vendor ;  and  though  the 
contract  was  executed  under  circumstan- 
ces which  might  easily  have  led  to  fraud, 
the  vendor  being  considerably  in  liquor ; 
no  fraud  being  proved  in  the  vendee  or 
his  agent.  Lightfoot  v.  Heron,  3  You.  & 
Coll.  586. 


CHAP.    XXIV.]  SALE   OF   EXPECTANCIES.  377 


CHAPTER    XXIV. 


SALE    OF   EXPECTANCIES. 


1.  Having  in  the  last  chapter  spoken  of  implied  or  constructive 
fraud,  as  affecting  the  validity  of  a  sale,  and  more  especially  of 
that  particular  fraud  which  consists  in  inadequacy  of  consideration  ; 
we  proceed  to  another  class  of  contracts,  which  the  law  holds  to 
be  invalid,  by  reason  of  the  individual  position  or  character  of  one, 
or  the  mutual  relation  of  both,  of  the  contracting  parties.  Under 
this  head  are  included,  in  the  first  place,  sales  made  by  the  holders 
of  expectant  interests,  including  remainder-men,  reversioners,  and 
heirs,  but  most  especially  the  parties  last  named,  which,  in  the 
common  course  of  things,  also  involve  inadequacy  of  considera- 
tion ;  and,  in  the  second  place,  sales  made  by  or  in  behalf  of  per- 
sons beneficially  interested  in  the  property  sold,  to  those  charged 
with  some  confidential  relation  with  reference  to  such  property. 
In  the  former  case,  the  validity  of  the  sale  is  affected  by  the  absolute 
character  or  position  of  the  vendor ;  in  the  latter,  by  his  relative 
position  in  respect  to  the  vendee. 

2.  Mr.  Sugden  says,i  "  In  treating  of  inadequacy  of  price,  we 
must  be  careful  to  distinguish  the  cases  of  reversionary  interests, 
the  rules  respecting  which,  especially  where  an  heir  is  the  vendor, 
depend  upon  principles  applicable  only  to  themselves,  and  not 
easily  definable.  The  heir  of  a  family  dealing  for  an  expectancy 
in  that  family  is  distinguished  from  ordinary  cases,  and  an  uncon- 
scionable bargain  made  with  him  is  not  only  to  be  looked  upon  as 
oppressive  in  the  particular  instance,  and  therefore  avoided,  but  as 
pernicious  in  principle,  and  therefore  repressed.  There  are  two 
powerful  reasons  why  sales  of  reversions  by  heirs  should  be  dis- 
countenanced ;  the  one,  that  it  opens  a  door  to  taking  undue 
advantage  of  an  heir  being  in  distressed  and  necessitous  circum- 
stances, which  may,  perhaps,  be  deemed  a  private  reason  ;    the 

1  1  Vend.  &  p.  369. 


378  LAW    OF   VENDORS   AND   PURCHASERS.        [CHAP.    XXIV. 

other  is  founded  on  public  policy,  in  order  to  prevent  an  lieir  from 
shaking  off  his  father's  authority,  and  feeding  his  extravagances 
by  disposing  of  the  family  estate." 

3.  Upon  the  same  subject,  Judge  Story  remarks,  "  Relief  has 
been  constantly  granted  in  equity,  in  what  are  called  catching  bar- 
gains, with  heirs,  and,  in  modern  times,  reversioners  and  expec- 
tants, in  the  life  of  their  parents  or  other  ancestors,  or  during  the 
continuance  of  prior  particular  estates.  Many,  and  indeed  most 
of  the  cases,  have  been  compounded  of  all  or  every  species  of 
fraud ;  there  being  sometimes  proof  of  actual  fraud,  which  is 
always  decisive.  There  is  always  fraud  presumed  or  inferred  from 
the  circumstances  or  conditions  of  the  parties  contracting ;  weak- 
ness on  one  side,  usury  on  the  other,  or  extortion  or  advantage 
taken  of  that  weakness.  Generally,  there  lias  been  deceit  upon 
third  persons ;  the  father  or  other  ancestor  has  been  kept  in  the 
dark,  and  thereby  misled  and  seduced  to  leave  his  estate,  not  to 
his  heir  or  family,  but  to  a  set  of  artful  persons,  who  have  divided 
the  spoil  beforehand.  The  doctrine  is  founded  in  part  upon  the 
policy  of  maintaining  parental  and  quasi  parental  authority,  and 
preventing  the  waste  of  family  estates,  as  well  as  of  guarding 
distress  and  improvidence  against  calculating  rapacity.  Equity 
treats  parties  in  this  situation  almost  like  infants^  incapable  of  con- 
tracting ;  and,  although  formerly  undue  advantage  must  be  shown 
to  have  been  taken,  it  now  requires  the  purchaser  to  make  good  the 
bargain^  that  is,  not  merely  to  show  the  absence  of  fraud,  but 
payment  of  a  full  consideration.  The  Court  will  relieve  upon  the 
general  principle  of  mischief  to  the  public,  without  requiring  any 
particular  evidence  of  imposition,  unless  the  contract  is  shown  to 
be  above  all  exception.  Years  do  not  seem  to  make  much  differ- 
ence in  the  case  of  expectant  heirs,  since  the  aim  of  the  rule 
is  principally  to  prevent  imposition  upon  ancestors.  And  the  same 
rule  applies,  it  seems,  to  reversioners  and  remainder-men,  if  neces- 
sitous, distressed,  and  embarrassed."  ^ 

4.  The  doctrine  upon  this  subject,  involving  other  transactions 
with  heirs  besides  agreements  for  the  sale  of  their  expectant 
interests,  has  been  stated  by  the  Supreme  Court  in  Massachusetts, 
as  follows :  When  an  heir  gives  a  bond,  on  receiving  a  sum  of 
money,  to  pay  a  larger  sum,  exceeding  legal  interest,  upon  the 

1  1  Story,  Eq.  327,  333. 


CHAP.    XXIV.]  SALE    OP    EXPECTANCIES.  379 

death  of  his  ancestor,  if  the  heir  shall  he  then  living ;  if  there  is 
only  a  reasonable  indemnity  for  the  hazard,  it  may  be  enforced  at 
law.  But,  if  his  necessities  are  taken  advantaae  of,  he  is  relieved 
as  against  an  unconscionable  bargain,  on  payment  of  principal  and 
interest.  So,  when  one  having  a  reversion  or  remainder  contracts 
to  sell  it,  on  becoming  possession,  for  money  paid  at  the  time 
of  the  bargain,  a  similar  rule  is  adopted.  Here  there  may  be 
a  computation  of  the  risk,  as  involved  in  the  continuance  of  the 
preceding  estate ;  and  the  bargain,  like  that  before  mentioned, 
may  be  relieved  against,  if  unconscionable.  If  the  reversion  or 
remainder  be  actually  conveyed,  equity  alone  can  give  relief, 
unless  there  were  absolute  fraud.  But  a  contract  made  by  an 
heir  to  convey  on  the  death  of  his  ancestor,  living  the  heir,  a 
certain  undivided  part  of  what  shall  come  to  the  heir  by  descent, 
distribution,  or  devise,  is  a  fraud  upon  the  ancestor,  productive  of 
public  mischief,  and,  moreover,  in  the  nature  of  a  ivager,  without 
furnishing  any  means  of  computing  the  risks,  &c.,  as  to  the 
amount  of  the  property  and  the  value  of  the  inheritance,  and  is 
therefore  void  both  in  law  and  equity.^ 

5.  The  query  has  been  suggested,  whether  every  vendor  of  an 
expectant  interest  is  not  to  be  regarded  in  equity  as  a  young  heir, 
dealing  for  his  expectancy.  But  it  is  stated  to  be  clear,  that  very 
anxious  protection  is  extended  by  equity  to  all  persons  selling  ex- 
pectant interests,  whether  they  stand  in  the  relation  of  expectant 
heirs  or  not ;  and  trivial  circumstances,  added  to  inadequacy  of 
price,  are  sufficient  to  set  aside  such  sales.^  Chancellor  Desaus- 
sure  says,  "  There  is  a  distinction  made  between  the  cases  of 
young  heirs  selling  expectancies,  and  of  others  which  I  am  not 
disposed  to  support.  It  is  said,  that  the  former  are  watched  with 
more  jealousy,  and  more  easily  set  aside,  than  others,  on  principles 
of  public  policy.  This  was  certainly  true  at  first ;  but  the  eminent 
men  who  have  sat  in  chancery,  have  gradually  applied  the  great 
principles  of  equity  on  which  relief  is  granted  to  every  case  where 
the  dexterity  of  intelligent  men  had  obtained  bargains  at  an 
erroneous  and  unconscientious  disproportion,  from  the  ignorance, 
the  weakness,  or  the  necessities  of  others,  whether  young  heirs  or 
not."  3 

1  Per  Parsons,  C.J.,  Boynton  v.  Hub-         2  M'Kinney  v.  Pinckard,  2  Leigh,  149. 
bard,  7  Mass.  119,  122.     See  Wheeler  v.         3  Butler  v.  Haskell,  4  Desaus.  687. 
Smith,  9  How.  55 ;  Hallett  v.  Collins,  10, 
174. 


380  LAW   OF   VENDORS   AND    PURCHASERS.        [CHAP.    XXIV. 

6.  Protection  is  said  to  be  aiforded  in  equity  to  an  expectant 
heir  or  other  reversioner,  dealing  for  his  expectancy,  as  approach- 
ing to  an  incapacity  to  contract ;  as  in  case  of  a  very  advantageous 
purchase,  though  without  fraud,  which  woukl  afford  no  ground  for 
rehef  between  persons  standing  precisely  equal ;  and  a  fortiori  in 
case  of  an  unconscionable  bargain.^     So,  in  order  to  support  a  bill 
in  equity  by  a  purchaser  for  specific  performance,  where  the  party 
contractiug  to  sell  was  an  expectant  heir,  the  plaintiff  must  show 
adequacy  of  consideration  in  limine.     Whether,  in  case  of  failure 
to  do  so,  the  bill  will  be  dismissed  with  or  without  costs,  depends 
on  the  circumstances  of  each  case.^     So  the  purchase  of  a  re- 
version from  an  heir,  in  the  life  of  his  father,  at  an  undervalue, 
was  set  aside,  though,  if  the  heir  had  died  before  his  father,  the 
purchaser  would  have  lost  all  his  money .^     So,  whether  the  heir- 
ship be  presumptive  or  apparent,  it  is  held  not  to  be  an  interest  or 
possibility  capable  of  being  made  the  subject  of  contract.^     So,  if 
an  heir  sells  his  reversion,  in  the  life  of  his  father,  at  an  under- 
value, the   Court  will  not,  in  favor  of  such  purchaser,  decree  a 
specific  performance  of  a  covenant  for  further  assurance.^      So  a 
sale  by  an  heir  apparent  of  interests  in  possession  and  reversion  was 
set  aside,  the  consideration  being  inadequate,  and  advantage  having 
been  taken  of  the  vendor's  embarrassments.^      So  the  plaintiff, 
having  a  remainder  in  tail,  and  being  distressed,  conveyed  two 
manors  of  the  yearly  value  of  X300,  expectant  on  an  estate  for  life 
in  his  uncle,  for  the  sum  of  X300,  to  the  defendant,  his  heirs  and 
assigns,  from  and  after  the  decease  of  the  uncle  without  issue 
male.     The  plaintiff  brings  a  bill  to  be  relieved  against  this  bar- 
gain as  unconscionable  ;  and  the  defendant  files  a  ci'oss  bill  for 
specific  performance.     Lord  Hardwicke  held  it  a  void  conveyance, 
even  in  point  of  law ;  for,  as  the  plaintiff  had  a  remainder  in  tail 
only,  he  could  not  dispose  of  the  inheritance.    Therefore,  the  cross 
bill  was  dismissed,  and  the  conveyance  set  aside  as  a  catching  bar- 
gain against  a  necessitous  heir.'^     So  a  reversioner  for  life  of  a 
leasehold  estate  sold  it,  the  purchaser  obtaining  only  the  opinion  of 

1  Peacock  v.  Evans,  16  Ves.  512;  Ryle  3  Nott  v.  Hill,  1  Vern.  167. 

V.  Brown,  13  Price,  758 ;  Bawtree  v.  Wat-  4  Carleton    v.  Loighton,    3   Mer.    667. 

son,  3  My.  &  K.  839 ;    Gowland  v.  Be-  See  Coles  v.  Trecothick,  9  Ves.  234. 
Paria,  17  Ves.  20;  Berny  v.  Pitt,  2  Vern.  ^  Jolmson  v.  Nott,  1  Vern.  271. 

14.  ^  Portmore    v.   Taylor,    4    Sim.   182; 

2  Pvyle  V.  Brown,  13  Price,  758 ;  Baw-  Gowland  v.  DeParia,  17  Ves.  20. 

tree  r.  Watson,  3  My.  &  K.  339.      See         ^  Barnardiston  v.  Lingood,  2  Atk.  134. 
Bernal  v.  Donegal,  3  Dow.  133. 


CHAP.    XXIV.]  SALE   OP    EXPECTANCIES.  381 

an  actuary  as  to  its  value,  without  taking  any  steps  to  ascertain  its 
market  value  in  reference  to  locality.  Upon  a  suit  by  the  vendor, 
the  sale  was  set  aside  for  inadequacy  of  price,  the  defendant  not 
showing  that  he  gave  the  fair  market  value.^ 

7.  The  rule  under  consideration  being  founded  chiefly  u})on  the 
ground  that  such  contract  is  a  fraud  on  the  ancestor ;  it  has  been 
held  that  a  covenant,  by  an  heir  expectant,  that  he  will  convey  the 
estate  which  shall  come  to  him  by  descent  or  otherwise,  is  valid, 
if  made  with  the  consent  of  the  ancestor,  and  for  a  sunicicnt  con- 
sideration, and  without  advantage  being  taken  of  the  covenantor. 
Thus,  upon  an  action  of  covenant  broken,  it  appeared  that  the 
defendant  executed  a  deed,  "  in  consideration  of  $1,400  paid  me 
by  [the  plaintiffs],  my  brothers,  as  well  as  for  the  purpose  of 
enabling  my  father  (E.  F.)  to  settle  his  estate,  as  far  as  may  be, 
during  his  lifetime,  among  his  children  and  heirs-at-law ; "  pro- 
ceeding to  convey  all  present  and  future  interest  in  the  father's 
estate,  and  to  covenant  that  the  grantor  will  claim,  &c.,  no  part 
thereof,  and  on  demand  will  execute  to  the  plaintiffs  any  instru- 
ment necessary  to  carry  this  deed  into  effect.  It  appeared  that 
the  deed  was  made  with  the  knowledge  and  consent  of  the  father. 
Held,  though  nothing  passed  by  the  deed  in  the  father's  lifetime, 
there  being  then  nothing  to  grant,  yet  the  covenant  to  make  further 
assurances  might  be  valid,  if  made  on  good' consideration,  witliout 
oppression  or  advantage  taken,  and  with  the  father's  knowledge 
and  consent.  Parker,  C.J.,  says,  "  In  such  case,  there  is  no 
fraud  upon  him  (the  father)  nor  imposition  upon  the  heir  who 
covenants,  and  no  injury  to  the  public,  which  are  the  grounds 
on  which  such  contracts  are  set  aside  in  chancery.  Here  a  full 
and  adequate  consideration  was  paid  to  the  defendant,  who  was 
desirous  of  receiving  that  portion  of  his  father's  estate,  which 
in  the  course  of  law  would  fall  to  him.  With  this,  he  goes  abroad 
to  enter  upon  business,  with  a  money  capital.  The  father,  acqui- 
escing in  his  wishes,  assents  to  the  purchase  made  by  two  other 
sons,  thinking  this  the  best  mode  of  providing  for  the  wants  of  the 
son  who  is  to  leave  the  paternal  roof  and  seek  his  fortune  else- 
where. There  seems  to  be  nothing  against  good  policy  in  this, 
and  it  is  not  opposed  by  any  case  that  has  been  cited."  ^ 


1  Edwards  v.  Burt,  15  Eng.  Law  &  Eq.  434. 

2  Eitch  V.  Eitch,  8  Pick.  480,  483. 


382  LAW   OF   VENDORS   AND   PURCHASERS.        [CHAP.   XXIV. 

8.  So  a  release  by  an  heir  apparent  of  his  expectancy,  with 
a  covenant  that  neither  he  nor  those  claiming  under  him  will  ever 
claim  any  right  in  the  same,  is,  if  made  fairly  and  with  the  consent 
of  the  ancestor,  a  bar  to  the  releasor's  claim  thereto  by  descent  or 
devise,  after  his  ancestor's  death.  And  such  covenant  runs  with 
the  land,  and  protects  the  heirs  and  assigns  of  the  covenantee. 
So  a  release  of  "  all  the  right,  title,  or  interest,"  which  the  releasor 
"  has,  or  may  have,  in  or  unto  the  estate  of  his  father,  whether  the 
same  may  fall  to  him  by  will  or  heirship,"  includes  future  rights  to 
be  acquired  by  the  releasor ;  and  a  covenant  never  to  make  claim 
to  "  the  premises  "  is  a  covenant  never  to  make  claim  to  the 
estate  of  the  father.  More  especially,  where  such  deed  was 
made  after  the  will,  by  virtue  of  what  is  termed  by  the  Court  "  a 
family  arrangement,"  to  which  the  grantor,  his  brother  (the 
grantee),  and  their  father  were  parties ;  and  it  was  left  to  referees 
to  decide  what  should  be  paid  by  the  grantee  to  the  grantor ;  and 
the  award  was  made,  a  note  given  for  the  sum  awarded,  and  after- 
wards paid :  the  transaction  was  held  not  to  be  invalid. ^(a) 

9.  In  cases  of  this  nature,  the  general  rule  is,  to  grant  relief  on 
payment  of  principal,  interest,  and  costs,  the  purchaser  being  con- 
sidered as  a  mortgagee.  But,  in  general,  his  bill  to  establish  the 
purchase  will  be  dismissed,  with  costs,  except  of  depositions  used 
by  the  other  party .^  Thus  the  grant  of  a  reversionary  rent-charge, 
after  the  death  of  the  plaintiff's  father  (who  was  old  and  infirm) 
upon  unreasonable  terms,  was  set  aside,  but  to  remain  as  security 
for  the  money  really  advanced,  and  costs  to  be  paid  as  in  redeem- 
ing a  mortgage.^ 

10.  Lapse  of  time  may  be  a  bar  to  relief.  Thus  a  tenant  for 
life,  who  was  also  devisee  in  trust  in  remainder  for  the  children  of 
the  testator,  with  the  power  of  appointment  by  will  amongst  them, 
purchased  and  obtained,  from  the  objects  of  the  power,  a  release  of 
their  reversion  at  an  undervalue,  and  devised  the  estate  to  her  son 
in  fee,  charged  with  debts  and  legacies.  The  son  took  possession 
and  paid  off  the  legacies  and  charges.  Fourteen  years  and  a  half 
after  the  death  of  the  tenant  for  life,  and  seventeen  years  after  the 

1  Trull  V.  Eastman,  3  Met.  121.     Ace.         2  Peacock  v.  Evans,  16  Ves.  512. 
Edwards  v.  Burt,  15  Eng.  Law  &  Eq.  434.         3  Gwynne  v.  Heaton,  1  Bro.  C.  C.  1. 

(a)  It  seems  there  is  the  same  excep-    and  not  objected  to  by  the  prior  tenant, 
tion  to  the  rule,  where  the  party  is  a  re-     King  v.  Hamlet,  2  My.  &  K.  473-4. 
Tersioner,  &c.,  and  the  bargain  is  known 


CHAP.    XXIV.]  SALE   OF   EXPECTANCIES.  383 

purchase  of  the  reversion,  the  assignee  of  one  of  the  vendors,  an 
object  of  the  power  who  had  become  insolvent,  filed  his  bill  to  set 
aside  the  sale.  Held,  the  lapse  of  time  Avas  a  bar,  notwithstanding 
the  poverty  of  the  cestui  que  trust. ^ 

11.  But  a  reversionary  grant  from  a  person  in  the  situation  of 
an  expectant  heir,  though  made  thirty-four  years,  and  confirmed 
by  a  subsequent  deed,  was  set  aside ;  being  obtained  by  fraud  and 
imposition,  the  party  confirming  being  ignorant  of  his  rights,  and 
the  length  of  time  satisfactorily  accounted  for.  The  same  princi- 
ple applies  where  a  party,  though  apprised  of  his  rights,  is  com- 
pelled to  accede  to  the  terms  from  distress  and  poverty,  occasioned 
by  the  party  procuring  the  confirmation. ^ 

12.  Transactions  of  this  nature  may  undoubtedly  be  confirmed 
by  express  ratification,  as  well  as  delay,  on  the  part  of  the  injured 
party.  But,  where  grants  in  reversion  were  obtained  by  an  agent 
and  trustee  from  his  employers  and  cestuis  que  trusts,  by  fraud  and 
misrepresentation ;  and  afterwards  assigned  for  valuable  consider- 
ation to  a  purchaser  having  notice  of  the  facts  and  the  nature  of 
the  title :  the  conveyances  were  set  aside,  it  being  considered  that 
the  fiduciary  relations  still  existed,  the  grantor  being  ignorant  of 
his  rights,  and  the  circumstances  showing  a  continuation  of  the 
fraud  and  not  a  confirmation. ^(a) 

1  Roberts  v.  Tunstall,  4  Hare,  257.  3  Dunbar  v.  Tredennick,  2  Ball  &  Bea. 

2  Roche  V.  O'Brien,  1  Ball  &  Bea.  330.     304. 

(fl)  Protection  has  been  extended  to  an  state  of  mind,  to  enter  into  articles  for 
heir  even  against  the  act  of  his  ancestor,  the  sale  of  it ;  equity  will  not  compel 
Thus  if  a  father,  possessed  of  an  advow-  specific  performance,  although  there  is  no 
son,  which  he  apparently  designed  for  his  imposition  or  fraud  imputable  to  the  pur- 
son,  be  prevailed  on,  when  in  an  infirm  chaser.     Bell  v.  Howard,  9  Mod.  302. 


384  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXV. 


CHAPTER    XXV. 

CONSTRUCTIVE   FRAUD.  —  TRUST,    ETC. 

1.  General  principle  of  confidential  rela-  13.     Miscellaneous  trusts;  lease;  remain- 

tions.  der;  public  trusts. 

4.  Agents.  14  a.  Sales  for  taxes. 

5.  Trustees;  execution  sales,  &c.  15.     Exceptions    and    limitations    to  the 
8.  Attorneys,  solicitors,  &c. ;  auction  sale,  general  rule ;    third  persons ;    allowance   for 

11.    Executors,  guardians,  &c.  improvements;  time  of  avoiding;  auctions. 

22.     Remedies. 

1.  It  remains  to  consider  another  kind  of  imjyUed  or  constructive 
fraud,  which  invalidates  a  sale  of  real  property ;  to  wit,  the  fraud 
arising  from  the  mutual,  confidential  relation  of  the  contracting 
parties ;  making  their  interests  identical,  and  rendering  it  both 
adverse  to  public  policy  and  dangerous  to  the  rights  of  one  of  the 
parties,  to  sanction  any  transaction  that  places  them  in  an  oppos- 
mg  or  hostile  attitude  with  reference  to  each  other.  This  class  of 
persons  is  said^  to  comprise  agents,  arbitrators,  attorneys,  as- 
signees of  bankrupts,  auctioneers,  commissioners,  creditors,  or 
others  confidentially  employed  in  reference  to  a  bankrupt's  estate, 
trustees,  and  mortgagees  in  trust  for  sale. 

2.  The  general  principle  upon  the  subject  is  thus  stated  by  a 
late  elementary  writer :  ••'  It  may  be  regarded  as  a  prevailing  prin- 
ciple of  the  law,  that  an  agent  must  not  put  himself,  during  his 
agency,  in  a  position  which  is  adverse  to  that  of  his  principal. 
For  even  if  the  honesty  of  the  agent  is  unquestioned,  and  if  his 
impartiality  between  his- own  interest  and  his  principal's  might  be 
relied  upon,  yet  the  principal  has  in  fact  bargained  for  the  exercise 
of  all  the  skill,  ability,  and  industry  of  the  agent,  and  he  is  entitled 
to  demand  the  exertion  of  all  this  in  his  own  favor.  This  principle 
is  recognized  to  some  extent  at  law ;  but  most  cases  of  this  kind 
come  before  Courts  of  Equity.  At  one  time,  it  was  understood  to 
be  necessary  to  show  that  a  trustee  had  taken  undue  advantage  of 
his  position,  in  order  to  set  aside  a  purchase  by  him  of  that  which 
he  was  a  trustee  to  sell.     But  this  is  not  so  now.     At  present,  the 

1  Chit,  on  Contr.  301. 


CHAP.    XXV.]  TRUST,    ETC.  385 

rule  in  equity  appears  to  be,  tliat  any  act  by  an  agent  with  respect 
to  the  subject-matter  of  the  agency,  injurious  to  his  principal,  may 
be  avoided  by  the  principal.  If  an  agent  to  sell  become  the  pur- 
chaser, or  if  an  agent  to  buy  be  himself  the  seller,  a  Court  of 
Chancery,  upon  the  timely  application  of  the  principal,  will  pre- 
sume that  the  transaction  was  injurious,  and  will  not  ])ermit  the 
agent  to  contradict  this  j)resumption  ;  luiless,  indeed,  he  can  show 
that  the  principal,  when  furnished  with  all  the  knowledge  he  him- 
self possessed,  gave  him  previous  authority  to  be  such  buyer  or 
seller,  or  afterwards  assented  to  such  purchase  or  sale."  ^ 

3.  The  principle  is  held  to  be  more  decisively  applicable,  where 
breach  of  trust  is  combined  with  other  causes  for  avoiding  the 
sale.  Thus  in  case  of  a  bill  to  set  aside  a  sale,  the  plaintiff,  tenant 
for  life  of  the  premises,  under  a  marriage  settlement,  without 
impeachment  of  waste,  having  become  involved  in  debt  and  greatly 
embarrassed,  in  May,  1801,  conveyed  all  his  estate,  <fec.,  in  the 
premises  to  trustees,  for  the  purpose  of  sale  (subject  to  a  rent 
charge  of  X150  per.  annum,  reserved  to  himself),  for  the  benefit 
of  such  of  his  creditors  as  should  execute  the  deed.  Immediately 
afterwards,  he  went  to  reside  in  the  Isle  of  Man,  for  the  manifest 
and  avowed  purpose  of  personal  protection  from  his  still  unsatisfied 
creditors.  The  trustees  thereupon  employed  a  land  surveyor,  for 
the  purpose  of  measuring  and  valuing  the  plaintiff's  interest  in  the 
premises,  preparatory  to  putting  them  up  for  sale.  The  surveyor 
was  assisted  throughout  by  his  son,  the  defendant,  who  had  very 
recently  been  his  father's  partner  in  the  business,  himself  also  a 
land  surveyor  and  auctioneer,  and  had  great  share  in  making  the 
valuation,  by  measuring  and  mapping  the  estate,  <fec.  The  result 
of  that  valuation  (completed  in  December,  1801),  was  an  estimate, 
stating  the  annual  value  to  be  £232  3s.  5d.  On  the  6th  of  Feb- 
ruary following,  the  estate  was  put  up  to  sale  by  auction,  and  the 
defendant  employed  as  auctioneer.  The  estate  not  being  then 
sold,  as  no  one  had  offered  any  bid,  the  defendant,  on  the  next 
day,  proposed  to  the  trustees  to  purchase  it  himself  for  X500. 
They  immediately  acceded  to  the  proposal,  and  let  the  defendant 
into  possession  on  the  loth  of  April,  but  did  not  require  of  him  to 
pay  the  purchase-money  till  the  5th  of  March,  1803,  when  the  con- 
veyance to  him  was  executed,  and  they  then  received  it  without 

1  1  Pars,  on  Contr.  74,  75. 
25 


386  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXV. 

taking  or  requiring  interest.  That  conveyance  was  soon  afterwards 
executed  by  the  plaintiff,  who  came  from  the  Isle  of  Man  for  that 
purpose,  upon  receiving  a  letter  from  one  of  the  trustees,  informing 
him  that,  if  he  did  not  execute  the  deed,  the  annuity  of  .£150  would 
be  no  longer  paid.  At  the  time  of  sale  there  was  a  quantity  of 
valuable  timber  on  the  estate,  said  to  be  worth  from  £300  to  £700, 
which  had  not  been  taken  into  the  above  estimate.  Bill  to  set 
aside  the  purchase,  as  made  by  a  person  of  skill  in  business, 
employed  confidentially  to  value  and  sell  the  estate  for  the  vendor's 
advantage  ;  for  knowledge  in  consequence  acquired  by  him,  fraudu- 
lent abuse  of  trust,  inadequacy  of  price,  and  duress  and  coercion. 
Upon  these  several  grounds  taken  in  connection,  and  some  of 
which,  it  was  said  by  the  Court,  would  of  themselves  have  been 
sufficient  ground  for  its  action,  the  sale  was  set  aside.  Lapse  of 
time  was  held  to  be  no  bar,  in  consideration  of  the  plaintiff's  hav- 
ing been,  from  poverty  and  embarrassments,  non  compos  sui.^  And, 
where  a  conveyance  of  an  estate,  obtained  upon  a  pretended  pur- 
chase from  an  aged  and  illiterate  man,  by  a  person  who  stood 
towards  him  in  a  confidential  position,  was  set  aside ;  the  Court, 
being  of  the  opinion  that  there  was  in  fact  no  purchase,  refused  to 
give  the  defendant  a  decree  for  an  account  of  moneys  paid  by  or 
owing  to  him,  which  he  alleged  (but  failed  to  prove)  was  the  con- 
sideration agreed  upon  for  such  purchase  and  conveyance.^ 

4.  The  confidential  relations,  which  are  understood  to  be  violated 
by  transactions  of  the  nature  now  under  consideration,  are  those 
of  agency  and  trust.  These  are  to  some  extent  identical ;  all  agents 
being  in  a  certain  sense  trustees  ;  and  all  trustees,  agents.  It  has 
been  said,  however,  that  "  the  rule  is  applied  not  so  much  to  those 
who  act  as  servants,  or  instruments  for  some  particular  things, 
as  to  persons  whose  employment  is  rather  a  trust  than  a  mere 
service."^  But  agents,  from  the  very  nature  of  their  employ- 
ment standing  in  a  confidential  capacity,  are  clearly  subject  to  the 
rule,  (a)     Thus  the  defendant,  being  tenant  of  a  manor,  and  being 

1  Oliver  v.  Court,  8  Price,  127. 

2  Wilkinson  v.  Fowkes,  15  Eng.  Law  &  Eq.  163. 
^  1  Pars,  on  Contr.  76. 

(o)  It  is  said,  the  principal  bargains  tliat  it  may  be  correctly  said,  with  refer- 

for  the  exercise  of  the  disinterested  skill,  ence  to   Christian  morals,  that   no   man 

diligence,  and  zeal  of  the  agent,  for  his  can  faithfully  serve  two  masters  whose 

own  exclusive  benefit.     Story  on  Agency,  interests  are  in  conflict.     lb.  §  210.     And 

§  246.      See,  Smith's  Merc.  L.  93.     So,  the   doctrine,   though  chiefly  apphed  in 


CHAP.    XXV.]  TRUST,    ETC.  387 

employed  by  the  plaintiff,  and  having  agreed,  to  purchase  it  for 
him,  purchased  it  in  his  own  name.  He  afterwards  let  the  plain- 
tiff into  the  purchase  by  a  mutual  deed,  which,  however,  omitted 
many  things  comprised  in  the  purchase  deed.  Upon  a  bill  for 
relief  against  such  omissions,  decree  for  the  plaintiff.^  So  one 
who  assumes  to  act  as  agent  in  redeeming  land  sold  for  taxes,  and 
obtains  a  title  in  his  own  name,  will  be  held  to  answer  to  those 
for  whom  he  has  assumed  to  act,  by  a  bill  in  equity  for  an  account, 
and  to  compel  a  reconveyance,^  So  one  employed  to  bid  for 
another,  at  a  mortgage  sale  of  land,  cannot  purchase  it  himself,  nor 
through  another,  for  his  own  benefit.^  So  if  an  agent,  appointed 
to  sell  and  convey  lands,  cause  part  of  them  to  be  conveyed  to 
himself;  upon  application  within  reasonable  time  by  the  heirs  of 
the  principal,  equity  will  order  a  reconveyance  to  them,  unless  the 
principal  had  ratified  the  sale.*  And  the  rule  in  question  more 
especially  applies,  where  a  party  combines  the  characters  of  trustee 
and  agent  for  his  fellow-trustees.  Thus  a  purchaser  (being  a 
trustee,  acting  on  behalf  of  himself  and  others,  his  co-trustees,  and 
of  the  cestuis  que  trusts}  was  ordered  to  pay  the  purchase-money 
into  court ;  the  agreement  having  been  entered  into  in  the  name 
of  himself  alone ;  upon  affidavits,  that  the  plaintiffs  (the  vendors) 
had  no  notice  of  his  acting  for  others,  and  of  acts  of  ownership 
committed  since  possession  given  to  him  under  the  agreement ; 
in  opposition  to  the  answer,  alleging  notice  and  denying  any  acts 
of  ownership  by  himself,  or  by  any  other  person,  to  his  knowl- 
edge.^(a) 

1  Nelson  v.  Nelson,  Nels.  Cha.  Rep.  7.  •*  Sturdevant  v.  Pike,  1  Cart.  277. 

2  Schedda  v.  Sawyer,  4  McLean,  181 ;  5  Crutchley  v,  Jervinghani,  2  Meriv. 
Matthews  i'.  Light,  32  Maine,  305.  502. 

3  Moore  v.  Moore,  1  Seld.  256. 

equitj',  seems  to  be  equally  well  settled  an  agent  from  his  principal.     A  recon- 

at  law.     Taylor  v.  Salmon,  2  Mees.  &.  Cr.  veyance,  and  the  usual  accounts  of  rents 

139.  and  purchase-money,  were  directed,  niak- 

Upon  this  ground  it  has  been  even  ing  allowance  for  substantial  repairs  and 
held,  that  a  memorandum  made  and  lasting  improvements.  The  defendant 
signed  by  a  seller,  at  tlie  request  of  the  having  sold  and  conveyed  part  of  tlie 
purchaser,  will  not  bind  the  latter,  as  a  property,  pendente  lite,  and  died  before  the 
memorandum  within  the  Statute  of  accounts  were  completed ;  a  supjiiemental 
Frauds.  Wright  v.  Dannah,  2  Camp,  bill  was  filed  against  the  purchasers,  and 
203.  Upon  the  same  ground,  an  agent,  the  heir  and  personal  representatives  of 
who  discovers  a  defect  in  his  principal's  the  defendant,  charging  that  tlie  pur- 
title  to  lands,  cannot  misuse  it  to  acquire  chasers,  in  case  of  eviction,  claimed  com- 
a  title  for  himself,  but  will  be  lield  a  pensation  out  of  his  estate ;  and  the  con- 
trustee  for  his  principal.  Ringo  v.  Binns,  veyances  pendente  lite  were  set  aside. 
10  Pet.  269.  Held,  tlie  purchasers  were  entitled  in  this 

(a)  Decree,  setting  aside  a  purchase  by  suit,  as  against  their  co-defendants,  the 


388  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXV. 

5.  The  most  numerous  class  of  cases,  falling  under  this  general 
head,  is  that  of  trusts,  technically  so  called ;  where  one  party  is 
not  merely  employed  by  another  to  perform  an  act  in  relation  to 
property  for  him,  but  is  intrusted  with  the  property  itself.  Under 
these  circumstances,  as  has  been  stated,  it  is  the  general  rule,  that 
a  trustee  shall  not  be  allowed  to  purchase  the  trust  property  for 
his  own  benefit ;  either  directly  or  through  an  agent.  He  who 
undertakes  to  act  for  another,  in  any  matter,  shall  not  in  the  same 
matter  act  for  himself,  and  make  the  business  an  object  of  interest. 
Although  the  cestui  que  trust  be  of  age,  the  transaction  morally 
fair  and  honest,  a  higher  price  paid  by  the  trustee  than  any  one 
else  would  give,  the  estate  taken  at  an  appraisement  or  in  the 
name  of  a  third  person ;  it  has  been  held  that  the  transaction  may 
be  set  aside  by  the  cestui.  The  trustee  purchases  subject  to  that 
equity} 

6.  We  have  already  had  occasion  to  notice  (ch.  9,  §  12)  the 
exception  from  the  Statute  of  Frauds  of  that  class  of  cases,  in 
which  one  person  purchases  real  estate  for  the  benefit  of  another, 
and  under  a  verbal  agreement  that  the  latter  shall  have  the  benefit 
of  the  purchase.     These  are  for  the  most  part  sales  on  execution, 

1  Campbell  v.  Walker,  5  Ves.  680;  Ringgold  v.  Ringgold,  1  Harr.  &  G.  11 ; 
Whiclicote  v.  Lawrence,  3  Ves.  740. 

personal  representatives  of  the  original  each  being  entitled  to  the  extent  of  one- 
defendant,  to  an  order  for  repayment  of  fourth  by  their  private  agreement.  Held, 
their  purcliase-money,  and,  as  against  the  that  one  lias  an  interest  in  the  whole  as 
plaintiff,  to  an  allowance  for  substantial  agent,  besides  his  interest  as  principal  in 
repairs  and  lasting  improvements,  but  to  one-fourth.  And,  if  he  gets  a  deed  from 
no  greater  relief.  Also,  that  the  heir  and  the  State  for  one-eighth,  running  directly 
personal  representatives  were  proper  par-  to  a  purchaser  of  one-eighth,  instead  of 
ties.     Trevelyan  v.  White,  1  Beav.  .588.  one  to  himself,  and  then  from  himself  to 

An  agent  employed  to  sell  estates  took  the  purchaser,  he  is  answerable  for  the 

them  for  himself,  under  color  of  a  fictitious  whole  consideration  received,  on  the  sale 

purchase,  and  sold  a  part.    He  also  fraudu-  being  rescinded.     But  if,  after  the  sale, 

lently  prevailed  on  his  principal  to  execute  lie  divided  the  whole  of  it  between  the 

a  lease  at  a  losing  rent.     After  his  death,  other  three  owners,  concluding  to   keep 

an  inquiry  was  directed,  to  ascertain  the  as  his  own  share  the  other  one-fourth  of 

real  value,  according  to  wliich  his  estate  the  land,   having  sold  in   all  to  various 

was  to  be  charged ;  the  principal  having  persons   three-fourths   of    it  ;     the   other 

an  option  to  take  what  remained  unsold ;  tiiree  are  responsible  to  refund,  in  aid  of 

and  the  agent's  estate  was  charged  with  him,  tlie  one-third  each  received.     Dog- 

the  loss  arising  from  the  lease.  Hard-  gett  v.  Emerson,  1  Woodb.  &  M.  195,  206. 
wicke  V.  Vernon,  4  Ves.  411 ;  14  Ves.  An  agent  having  purchased  the  prop- 

504.  erty  of  his  principal  at  a  sheriff's  sale,  the 

Four  persons  agree  to  purchase  of  the  Circuit   Chancellor  refused   to   set  aside 

State  a  tract  of  land,  give  their  joint  note  the  purchase,  but  ordered  that  he  account 

for  the  consideration,  and  take  a  writing  for   "the   true   value"   of  the  property, 

from  the  agent  of  the   State  to   make  a  Held,  this  meant  the  true  value  at  the 

deed  on  demand  ;  they  also  authorized  one  time  of  sale.     Raness  v.  Wall,  5  Rich.  Eq. 

of  their  number,  in  writing,  to  take  a  deed  143. 
of  the  same,  and  sell  it  for  the  whole, 


CHAP.    XXV.]  TRUST,    ETC.  389 

where  some  friend  of  the  execution  debtor  interposes  to  purchase 
the  property  for  his  use.  The  violation  of  the  agreement  in  such 
case  comes  under  the  present  head  of  constructive  fraud.(a) 

7.  And  the  principle  \5  extended  to  other  analogous  transactions, 
the  effect  of  which  is  to  injure  a  delator,  though  not  by  violating 
any  trust  to  which  he  is  in  terms  a  party.  Tluis  the  land  of  A. 
was  advertised  for  sale  on  an  execution  in  favor  of  B.  C,  who 
had  purchased  the  land,  without  knowing  of  the  judgment  and 
execution,  agreed  with  B.  who  attended  the  sale,  that,  if  he  would 
not  bid  against  him,  he  would  pay  B.  the  amount  of  his  execution, 
and  give  him  his  note  for  the  further  sum  of  8150,  and  B.  acceded, 
and  desisted  from  bidding.  Action  on  the  note  against  C,  by  an 
indorsee,  who  took  it  after  it  became  due,  with  notice.  Held,  the 
consideration  might  be  inquired  into  ;  and,  being  unconscientious, 
and  against  public  policy,  the  note  was  void.^  So,  where  a  judg- 
ment and  execution,  which  had  been  fully  paid  and  satisfied,  were 
kept  on  foot  by  the  assignees  of  the  judgment,  fraudulently,  for 
the  purpose  of  speculating  on  the  property  of  the  debtor,  of  which 
the  defendants,  assignees  or  owners  of  such  property,  became  pur- 
chasers at  a  sheriff's  sale  ;  they  were  decreed  to  execute  a  release, 
of  all  their  title  and  interest  so  acquired,  to  the  owner  of  the  lands 
thus  fraudulently  sold  in  execution,  to  deliver  up  possession,  and 
to  pay  the  rents  and  profits,  and  damages  for  any  waste  committed, 
with  all  costs,  &q,?  So,  the  plaintiff  in  equity  having  purchased 
at  auction  from  D.  a  lot  of  land,  on  his  failure  to  comply  with  the 
terms  of  the  sale,  D,  entered  and  took  possession,  but,  on  applica- 
tion by  the  plaintiff,  was  enjoined  in  equity  from  making  a  sale 
thereof.  A  new  arrangement  was  then  made,  by  which  D.  placed 
a  warranty  deed  in  the  hands  of  P.  in  escrow,  agreeing  that  it 
should  be  surrendered  to  the  plaintiff  on  a  certain  day,  provided 
he  had   complied  with   certain   terms  of  payment,  the    plaintiff 

1  Jones  V.  Caswell,  3  Johns.  Cas.  29.  2  Troup  v.  Wood,  4  Johns.  Ch.  228. 

(a)  See  M'lnt^^re  v.  Skinner,  4  Greene,  of  his  debts.     Tiie  trustee  afterwards  paid 

89.     An  agreement  of  this  nature  may  out  money  in  disciiarge  of  a  mortgage,  to 

also  avoid  the  sale,  subject,  however,  to  an  which  the  land  was  subject  wlien  sold, 

equitable  claim  for  actual  outlays.     Thus  and  neitlier  of  them  was  accessory  to  the 

a  sheriff's  sale  was  made  to  one  who  pur-  fraud.     Held,  the  sale,  under  the  circum- 

cbased  at  the  instance  of  the  debtor,  and  stances,    should    be    set    aside,    but    the 

conveyed  to  a  trustee  for  the  benefit  of  money  thus  advanced  should  be  refunded, 

the  debtor's  family.     The  mother  of  tlie  and  the  land   stand   as  security  for   the 

debtor's  wife   advanced    money   towards  payment.     McMeekin  v.  Edmund,  1  Hill, 

the  purchase,  which  went  to  the  payment  Ch.  288. 


390  LAW   OP  VENDORS    AND   PUECHASERS.         [CHAP.    XXV. 

making  a  deposit  of  $1,000  as  forfeit  money.  Tlie  plaintiff  then 
proceeded  to  build  on  the  land,  but,  failing  in  his  means,  was 
unable  to  comply  with  his  agreement.  D.  then  threatened  to  sell 
the  premises,  and  the  plaintiff  filed  a  second  bill  in  equity  to 
restrain  the  sale,  and  an  injunction  was  granted,  and  an  inter- 
locutory decree  passed,  that,  if  he  should  perform  his  agreement 
before  a  certain,  time,  the  injunction  should  stand  continued,  other- 
wise be  dismissed.  He  failed  to  perform  his  agreement,  and  the 
bill  was  accordingly  dismissed.  Between  the  decree  and  the  dis- 
missal of  the  bill,  the  plaintiff,  having  expended  large  sums  on  the 
building,  and  exhausted  his  resources,  applied  to  E.,  one  of  the 
defendants,  for  aid  to  raise  money,  in  order  to  complete  the  build- 
ing and  discharge  the  debts ;  and  it  was  arranged  between  them, 
that  an  absolute  conveyance  should  be  made  by  D.  to  E.,  which 
was  done.  On  the  same  day  the  plaintiff  executed  a  release  of  all 
interest  to  E.,  to  complete  the  title,  excluding  in  terms  "  all  claims 
and  demands  made  by,  through,  or  on  account  of  the  plaintiff,  and 
also  excepting  any  claims  or  demands  arising  out  of  any  contract 
made  by  or  with  the  plaintiff,"  and  admitting  that  he  had  no  legal 
or  equitable  right  in  the  same.  E.  then  assumed  the  ostensible 
ownership,  but  the  plaintiff  was  employed  in  superintending  the 
erection  of  the  building,  procured  securities  to  assist  in  raising 
funds,  and  also  had  work  done  on  his  own  account.  E.  afterwards 
sold  the  premises  to  K.,  another  defendant.  The  bill  alleges  that, 
at  the  time  of  making  the  conveyance  to  E.,  although  there  was  no 
writing  to  such  effect,  it  was  understood  between  E.  and  the  plain- 
tiff, that  the  premises  were  to  be  held  by  E.  in  trust,  for  the  benefit 
of  the  plaintiff;  and  that  the  conveyance  was  made  absolute,  solely 
for  the  purpose  of  freeing  the  premises  from  all  claims  by  or  through 
the  plaintiff,  and  that  E.  was  only  to  receive  a  remuneration  for 
his  services  and  indemnification  for  his  expenses,  and  then  to 
reconvey  to  the  plaintiff;  and  also  that  K.  was  not  a  bond-fide 
purchaser  without  notice.  Held,  1.  That  the  circumstances 
showed  no  sufficient  motives  on  the  part  of  the  plaintiff  to  make 
an  absolute  and  unrestricted  conveyance  ;  but  that  they  were  per- 
fectly consistent  with  the  parol  trust  set  up. 

2d.  That  the  former  decree,  not  being  a  dismissal  upon  the  mer- 
its, was  not  an  absolute  bar  to  a  future  suit. 

3d.  That  the  release  by  the  plaijitiff,  though  absolute  in  its 
terms,  was  indispensable  to  guard  the  property  against  his  credit- 


CHAP.    XXV.]  *  TRUST,   ETC.  391 

ors,  and  induce  capitalists  to  advance  funds,  and  therefore  was 
not  inconsistent  with  a  parol  trust ;  and  that  the  evidence  was 
irreconcilable  with  any  other  supposition,  than  that  E.  was  acting 
throughout  as  the  agent  of  the  plaintitf, 

4th.  That  if  E.,  knowing  that  the  plaintiff  only  intended  that 
he  should  act  as  agent,  did,  nevertheless,  intend  to  act  for  his  own 
benefit  solely,  the  concealment  of  such  a  design  from  the  plaintiff 
was  a  fraud  in  equity. 

5th.  That  this  was  a  case  of  parol  trust,  resulting  from  agency, 
and  resting  upon  honorary  obligations,  and  as  such  equity  would 
enforce  it. 

6th.  That  it  was  not  within  the  Statute  of  Frauds,  because,  1st. 
A  resulting  trust  as  to  the  plaintiff,  and  a  trust  as  to  E.  merely 
for  his  liabilities,  compensation,  and  expenditures.  2d.  A  case  of 
agency.     3d.  Of  constructive  fraud.     4th.  Of  part-performance. 

7th.  That  K.  was  not  proved  to  be  a  bond-fide  purchaser  without 
notice,  even  if  he  had  no  notice  of  the  actual  state  of  the  title  and 
claim  of  the  plaintiff,  having  sufficient  notice  of  the  claim  and  con- 
troversy to  be  put  upon  inquiry. 

8th.  That,  although  the  plaintiff  may  never  have  been  able  to 
discharge  the  incumbrances  and  remunerate  the  defendant  as 
agreed,  equity  would  not  therefore  decree  that  his  rights  were  ex- 
tinguished, though  it  might  on  this  ground  foreclose  his  rights  and 
order  a  sale,  on  application  by  the  defendant.^  So  A.,  having  an 
equitable  interest  in  land,  of  which  he  was  in  possession,  and 
which  was  about  to  be  sold  at  a  judicial  sale,  agreed  by  parol  with 
B.,  that  he,  B.,  should  purchase  it  for  the  benefit  of  A.'s  wife  and 
children.  B.  stated  the  agreement  to  several  persons,  and  his 
statements  were  calculated  to  stifle  competition  among  bidders, 
and  actually  did  prevent  one  person  from  attending  the  sale,  and 
bidding.  B.  purchased  the  land  at  about  half  its  value,  and  then 
refused  to  comply  with  his  agreement.  Held,  that  B.'s  conduct 
was  fraudulent,  and  he  was  not  allowed  to  retain  the  land.-(a) 

8.  Upon  similar  prhiciples  of  policy,  no  attorney  shall  purchase 

1  Jenkins  v.  Eldredge,  3  Story,  R.  181.         2  Kinard  v.  Hiers,  3  Rich.  Eq.  423. 

(a)  It  is  deemed  unnecessary  to   cite  the  trust  property.     Some  of  those  which 

more  of  the  numerous  cases  to  be  found  point    out    exceptions,   (luahfications,   or 

in  the  books,  wliicli  estabhsli,  recognize,  peculiar  applications  of  the  rule,  will  be 

or  illustrate  the  general  principle  stated  briefly  referred  to  in  a  subsequent  part  of 

in  the  text,  that  a  trustee  cannot  purchase  this  chapter. 


392  LAW    OF   VENDORS    AND    PURCHASERS.         [CHAP.   XXV. 

the  property  involved  in  a  litigation  of  which  he  has  the  manage- 
ment.^(a)  Thus  counsel,  consulted  respecting  a  title,  cannot  buy 
in  an  outstanding  adverse  claim,  and  set  it  up  against  tlie  client.^ 
So  a  solicitor,  who  purchases  from  his  client,  is  bound  to  prove 
that  he  paid  that  price  for  tlie  property  which,  in  the  exercise  of 
his  professional  duty,  he  would  have  advised  his  client  to  accept 
from  a  third  person. ^  So,  in  order  to  render  valid  such  purchase 
by  a  solicitor  from  his  client,  the  former  must  show  that  he  gave 
his  client  all  the  reasonable  advice  against  himself,  which  his 
office  would  have  required  against  a  third  person ;  varying,  how- 
ever, according  to  tlie  subject  of  the  purchase,  the  relative  situa- 
tion of  the  parties,  and  the  equality  of  the  footing  upon  which  they 
stand  in  reference  to  the  subject.  Though,  if  the  relation  does  not 
exist  in  Jidc  re,  the  rule  with  regard  to  the  onus  of  proof  may  no 
longer  be  applicable.*  Thus  where  an  attorney,  consulted  by  a 
vendor  respecting  the  sale,  himself  became  the  purchaser  at  auc- 
tion ;  held,  a  bill  brought  by  him  for  specific  performance  should 
be  dismissed,  with  costs.^  So  an  agreement  entered  into  between 
an  attorney  and  his  client,  for  the  purchase  by  the  attorney,  at  an 
under-price,  of  estates  to  which  the  client  had  a  good  title,  but  of 
which  he  was  not  in  possession,  was  set  aside  for  fraud  and  main- 
tenance.^(6) 

1  Hall  V.  Hallet,  1  Cox,  134.  *  Edward  v.  Meyrick,  2  Hare,  60. 

2  Hackenbury  v.  Carlisle,  5  W.  &  S.  5  Salmon  v.  Cutts,  5  Eng.  Law.  &  Eq. 
348.                                                                    93. 

»  Champion  v.  Eigby,  1  Russ.  &  My.  6  Jones  v.  Thomas,  2  You.  &  Coll.  498. 
539. 

(a)  As  to  the  signification  of  the  terms  that  part  of  the  lease  of  1745  which  was 
"undue  influence,"  as  applied  to  transac-  in  the  possession  of  B.,  in  consideration  of 
lions  betAveen  solicitor  and  client,  see  Cas-  £20,  agreed  to  ratify  that  lease,  and,  on 
borne  v.  Barsham,  2  Beav.  76.  the  expiration  of  the  term,  to  grant  a  re- 

(b)  Agreement  for  a  reversionary  lease,  newal  for  a  further  term  of  [blank]  lives, 
obtained  by  an  attorney  from  the  son  of  The  agreement  was  not  indorsed  on  the 
his  employer,  who  was  remaindei'-man  in  counterpart  of  tlie  lease,  and  was  not 
a  settlement,  under  which  his  father,  who  registered  till  June,  1760.  In  May,  1760, 
had  granted  the  existing  lease,  was  ten-  A.  died,  leaving  C.,  who  by  deed,  in 
ant  for  life.  Bill  for  specific  performance  1760,  settled  the  lands  in  trust  for  him- 
dismissed.  A.,  under  a  settlement  exe-  self  for  life  ;  remainder  to  his  two  daugh- 
cuted  in  1716,  was  tenant  for  life,  with  ters  as  tenants  in  common.  Tlie  resjiond- 
power  to  lease  for  any  term  not  exceeding  ent  became  entitled  to  one  moiety  of  the 
thirty -one  years,  remainder  to  his  first  and  lands,  as  the  only  son  of  one  of  the  daugh- 
other  sons  successively  in  tail  male.  In  ters,  and,  at  a  sale  under  a  decree  in  chan- 
1745,  A.  granted  to  B.,  who  was  then  eery  in  1814,  purchased  the  other  moiety, 
acting  as  his  attorney,  a  lease  of  lands,  com-  At  the  time  of  sale,  it  was  mentioned  that 
prising  two  hundred  acres  of  good  land,  the  lands  were  sold  subject  to  the  lease  of 
Irish  plantation  measure,  for  three  lives  1745.  B.  died  in  1780,  leaving  D.,  who 
or  thirty-one  years,  whichever  should  last  was  the  last  surviving  life  in  the  lease  of 
the  longest.  C.  was  the  only  son  of  A.  1745,  and  held  the  lands  under  the  lease 
In  1749,  C,  by  a  writing  indorsed  upon  till  his  death,  which  took  place  in  1817. 


CHAP.    XXV.] 


TRUST,   ETC. 


393 


9.  The  general  rule  has  been  hold  applicable  to  a  sale  on  exe- 
cution, at  auction.  Thus  land  was  sold  on  execution,  and  the 
plaintiff  directed  his  attorney  to  bid  it  off.  The  attorney  admitted 
he  had  done  so,  and  said  the  deed  would  be  made  to  the  plaintilf, 
and  that  he  had  made  a  temporary  sale,  to  save  the  expense  of  adver- 
tising, and  would  receipt  the  execution  when  paid.  The  sale  was 
made  on  a  stormy  day,  and  only  the  officer  and  the  attorney  at- 
tended.    The  attorney  purchased  the  land,  and  afterwards  con- 


The  appellants  claimed  as  devisees  of  D. 
In  1820  tiie  appellants  filed  a  hill  in  chan- 
cery, stating  the  facts  ahove  mentioned, 
and  praying  specific  performance  of  the 
agreement  to  grant  a  renewal  of  the  lease. 
Held,  they  were  not  entitled  to  sucli  re- 
lief. Blakeney  r.  Bagott,  3  Bligii,  n.s. 
237.  See  Twistleton  v.  Griffith,  1  P. 
Wms.  310. 

On  a  contract  for  the  sale  of  part  of  an 
estate,  the  purchaser  requiring  a  fine  for 
the  purpose  of  removing  admitted  defects 
in  the  title,  the  vendor  emplo^-ed  an  attor- 
ney, who  was  his  relation,  and  had  been 
professionally  employed  by  him  on  pre- 
vious occasions,  to  levy  the  fine,  and  com- 
plete the  contract.  The  attorney  advised 
the  levying  of  a  fine  of  the  whole  of  the 
vendor's  estate,  without  telling  Inm  the 
efltect  of  it ;  such  fine  was  accordingly 
levied,  and  the  vendor  died  without  de- 
claring its  uses,  and  without  republishing 
his  will,  previously  made,  by  which  he 
had  devised  tlie  whole  estate  to  his  wife, 
who  survived  hini.  After  the  vendor's 
death,  the  attorney  claimed  the  estate  as 
his  heir-at-law,  alleging  that  the  will  was 
revoked  by  the  fine,  and  brought  actions 
of  ejectment  to  recover  possession  thereof. 
The  widow  filed  a  bill  in  chancery  for 
relief,  and,  on  an  issue  directed  by  that 
Court,  a  jury  found  that  the  attorney 
fraudulently  concealed  what  effect  the  fine 
would  liave  upon  a  devise.  The  Court  of 
Chancery,  upon  that  verdict,  decreed  the 
attorney  to  be  a  trustee  for  the  devisee. 
The  House  of  Lords,  affirming  that  de- 
cree, held,  further,  that  the  attorney's 
alleged  ignorance  of  the  effect  of  the  fine, 
and  his  omission  to  inquire  whether  the 
conusor,  his  client,  had  made  such  a  will, 
constituted  such  professional  ignorance 
and  neglect,  as  would  make  him  in  a 
Court  of  Equity,  independent  of  the 
ground  of  fraud,  a  trustee.  Bulkley  v. 
Wilford,  2  Cla.  &  Fin.  102. 

In  1824,  A.  was  appointed  the  solicitor 
for  B.,  and  also  employed  as  an  agent,  for 
the  purpose  of  repiu-chasing  or  redeeming 
certain  aimuities,  whicli  liad  been  granted 
by  B.    In  1825,  A.,  at  his  own  suggestion, 


was  appointed  tlie  irrevocable  land  agent 
and  receiver  of  B.,  in  order  to  induce  cer- 
tain of  the  annuitants  to  make  reductions 
in  their  claims  ;  and  A.,  from  that  period 
until  May,  1838,  furnished  various  ac- 
counts as  such  agent  and  solicitor,  which 
accounts  were,  from  time  to  time,  settled 
and  signed  as  between  the  parties.  In 
1830,  A.,  wliile  still  in  tlie  employment  of 
B.,  took  an  assignment  of  one  of  the  an- 
nuities for  his  own  benefit,  having  paid  a 
less  sum  than  tiiat  which  had  been  agreed 
upon  by  the  deed  for  its  repurchase.  In 
1838,  A.  obtained  a  loan  of  ,£12,000  for 
B.,  B.'s  son,  C,  joining  in  the  security. 
This  loan  was  made  at  five  and  a  half  jier 
cent  per  annum,  and  the  deed  contained 
mutual  covenants,  binding  the  lender  on 
the  one  hand  not  to  call  in,  and  the  bor- 
rower on  the  other  not  to  pay  off",  the  loan 
for  five  years.  In  1838,  and  contempora- 
neously with  the  other  mortgage,  A.  ob- 
tained a  mortgage  of  the  equity  of  redemp- 
tion, to  secure  .£6,250,  at  six  per  cent  per 
annum.  This  deed  contained  no  clause 
restraining  A.  from  calling  in  the  money. 
It  also  ajipeared,  that  a  portion  of  this  sum 
was  intended  to  secure  untaxed  costs 
already  incurred,  as  well  as  costs  to  be 
incurred.  In  1839,  the  original  bill  in 
these  causes  was  filed  by  A.,  praying  a 
foreclosure  of  his  mortgage  of  1838,  and 
for  libertv  to  redeem  the  prior  mortgages. 
In  1840,  B.  and  C.  filed  a  cross  bill,  im- 
peaching the  mortgage  and  the  two  ac- 
counts, upon  the  foot  of  which  tlie  balance 
for  whicli  it  was  given  was  struck,  and 
also  praying  to  be  declared  entitled  to  the 
benefit  of  tl;e  purchase  made  by  A.  in  1830. 
Held,  the  prior  mortgagees  declining  to 
be  redeemed,  that  the  original  bill  should 
stand  dismissed,  as  against  them,  witii 
costs,  and  that  the  original  bill  would  also 
have  been  dismissed  as  against  B.  and  C., 
were  it  not  for  the  accounts  i)rayed  by  the 
cross  bill.  Held,  also,  that  A.  was  a  trus- 
tee for  B.  for  the  repurchase  of  the  annui- 
ties, anil  that  I',  was  entitled  to  the  hone- 
fit  of  such  purchase.  Lawless  v.  Mans- 
field, 1  Dru.  &  War.  557. 


394  LAW   OP   VENDOES   AND    PURCHASERS.         [CHAP.    XXV. 

veyed  to  one  having  notice  of  tlie  facts.  The  land  was  worth 
$2,000,  but  only  $80  due  on  the  execution.  Held,  the  judgment 
debtor  might  redeem,  on  payment  of  the  latter  sum  and  interest, 
the  amount  paid  by  the  attorney  or  second  purchaser  to  discharge 
incumbrances,  and  the  cost  of  improvements  made  by  the  latter.^ 
So  where  an  attorney,  employed  to  collect  or  foreclose  a  mortgage, 
took  a  conveyance  to  himself  of  the  equity,  instead  of  foreclosing ; 
held,  the  estate  was  subject  to  the  trust  in  the  hands  of  his  heirs, 
and  that  they  were  bound  to  reconvey,  on  payment  of  the  sum 
paid  for  the  equity,  and  of  the  trvistee's  claim  for  his  services, 
together  with  the  value  of  improvements  made  by  themselves 
before  notice  of  the  trust.^  So  beneficial  contracts  and  convey- 
ances, obtained  by  an  attorney  from  his  client,  during  their  rela- 
tion as  such,  and  connected  with  the  subject  of  the  suit,  being  also 
liable  to  the  charge  of  champerty ;  were  decreed  to  stand  as  a 
security  only  for  what  was  actually  due,  and  purchases  by  the 
attorney  were  declared  a  trust.  So  a  subsequent  deed,  not  a  sep- 
arate, independent,  voluntary  transaction,  but  under  the  same 
pressure,  and  called  for  under  the  covenant  for  further  assurance, 
was  held  no  confirmation.^ 

10.  It  is  held,  however,  that  an  attorney  may  contract  with  his 
client,  provided  no  advantage  be  taken  of  this  relation.  If  he  be 
employed  to  sell,  and  choose  to  deal  for  the  estate,  he  must  with- 
draw from  the  connection,  or  put  himself  completely  at  arm's 
length,  and  show,  if  the  contract  be  questioned,  that  he  has  given 
the  same  advice  for  the  benefit  of  his  client,  as  he  would  have  done 
if  the  sale  had  been  to  a  third  party.  If  employed  as  a  general 
land  agent,  he  is  bound,  if  he  purchases  any  of  the  estates,  to  com- 
municate to  his  principal  all  the  knowledge,  acquired  by  him  as 
agent,  of  the  real  value  of  the  estate.  But  mere  attorneyship  does 
not  prevent  his  entering  into  a  valid  contract  with  liis  client.^  So 
after  a  delay  of  eighteen  years,  a  bill  filed  by  a  client  against  his  solici- 
tor, to  avoid  a  purchase,  was  dismissed.^  So  in  case  of  the  pur- 
chase of  a  reversionary  interest  by  an  attorney  from  his  client, 
which  proved  in  the  event  advantageous,  but  made  without  fraud 
or  any  representation  ;  the  proposal  coming  from  the  client,  no 

1  Howell  V.  Baker,  4  Johns.  Ch.  118.  *  Cave   v.   Allen,   2  Dow.   289.     See 

2  Giddings  v.  Eastman,  5  Paige,  561.     Edward  v.  Meyrick,  2  Hare,  60. 

See  Davinney  v.  Morris,  8  Watts,  314.  ^  Champion  v.  Rigby,  1  Russ.  &  Myl. 

3  Gibson  v.  Jeyes,  6  Ves.  266.  539. 


CHAP.    XXV.]  TRUST,    ETC.  395 

confidence  being  reposed,  and  both  being  ignorant  of  the  vahic  ; 
the  bill  charges  fraud  and  misrepresentation,  confidence  and 
knowledge  on  one  side,  with  ignorance  on  the  other,  but  omits 
the  only  incorrect  circumstance,  that  the  receipt  was  taken  as  for 
money  paid,  though  the  real  consideration  was  by  deduction  from 
a  bill  of  costs,  not  then  of  that  amount.  Bill  dismissed  without 
costs.^ 

11.  The  same  principle  is  often  applied  to  purchases  made  by 
parties,  who  are  charged  with  trusts  in  relation  to  the  estates  of 
deceased  per  sons. (a?)  Thus  a  purchase,  by  the  general  agent  of 
heirs,  of  the  land  of  their  ancestor,  from  the  vendee  at  a  tax  sale, 
instead  of  redeeming  the  land,  inures  to  the  benefit  of  the  heirs.^ 
So  where  executors,  having  authority  to  sell,  sold  with  the  intent 
of  repurchasing;  held,  the  sale  was  voidable.^  So  in  case  of  a  de- 
vise of  land  mortgaged,  with  a  direction  to  the  executors  to  redeem  ; 
though  having  assets,  they  took  an  assignment  of  the  mortgage. 
Held,  they  took  in  trust  for  the  devisee.'*  So  where  an  administra- 
tor purchases  land,  sold  upon  a  judgment  in  favor  of  his  intestate, 
he  takes  it  in  trust.^  While,  if  an  executor  purchase  the  land  of  his 
testator  at  sheriff's  sale,  recede  from  his  purchase,  and  the  land  be 
resold,  he  is  chargeable  for  the  highest  price.^  So  where  an  execu- 
tor purchases  land,  and  takes  a  conveyance  to  the  estate,  this  is 
primd  facie  a  declaration  of  trust,  and  the' land  will  be  subject  to 
division  among  the  heirs."  So  a  purchase  by  an  executor,  at  an 
Orphan's  Court  sale  for  payment  of  debts,  is  voidable  by  the  devi- 
see or  heir,  even  though  the  devisee  did  not  interfere  in  procuring 
such  order,  but  the  petition  was  presented,  the  bond  given,  and 
the   sale   made,  by  another  executor.^      So,  where   one   of  two 

1  Montesquieu  v.  Sandys,  18  Ves.  302.     Darcus  v.  Crump,  6  B.  Mon.  3G3 ;  Paint- 

2  Myers,  2  Barr,  463.  er  v.  Henderson,  7  Barr,  48. 

3  Den  V.  M'Knight,  6  Halst.  385.  «  Quier  v.  Kelly,  2  Bin.  294. 

*  Jenison  v.  Hapgood,  7  Pick.  1.  ^  Garrett  v.  Garrett,!  Strobh.  Eq.  96. 

5  Fellows  V.  Fellows,  4  Cow.  682.    See         ^  Beeson  v.  Beeson,  9  Barr,  279. 

(a)  It  is  said,  that,  if  heirs  elect  to  set  cution  upon  the  intestate's  estate,  acted 

aside  purchases  made  by  executors,  ad-  both  as  defendant  and  agent  of  B.     Held, 

ministrators,  or   guardians,  at  their  own  the  proceedings  were  collusive  and  illegal, 

sale,  they  must  go  into  a  Court  of  Equity,  and  the  levy  void  against  a  subsequent 

Worthy  v.  Johnson,  8  Geo.  236.  execution  in  favor  of  C.     Goddard  v.  Di- 

The    general   principle   is   applied   to  voll,  1  Met.  413. 

otlier  transactions  of  similar  effect,  as  well  Upon  the  same  ground,  one  to  whom  a 

as  direct  purchases.     Thus  an  action  was  legacy  is  given,  c()ui)k'd  with  a  trust,  is 

brought  against  A.,  an  administrator,  for  chargeable    with    the    latter,  and   cannot 

his  own  benefit,  but  in  the  name  of  B.  legally  deal  with  the  cestui  (jxc  Intst.     Mc- 

A.  suflered  a  judgment  to  be  rendered  Cants  v.  Bee,  1  McC.  Cha.  383. 
against  him,  and,  in  the  levy  of  the  exe- 


396  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXV. 

executors,  empowered  to  sell  real  estate,  sells  to  the  other, 
who  has  resigned  his  trust,  he  being  an  heir  and  devisee,  and 
trustee  for  others ;  the  former  cannot  maintain  a  bill  in  equity 
for  specific  performance  of  such  contract.^  It  is  said,^  "  We 
cannot  sustain  upon  principles  of  sound  policy  contracts  of  a 
character  like  the  present.  For  although  we  have  no  reason  to 
doubt  that  this  individual  transaction  is  fair  in  its  motives,  and 
beneficial  perhaps  to  the  other  children  of  the  testator ;  still  to 
affirm  it  would  sanction  the  principle,  that  an  executor  may  bar- 
gain with  his  co-executor  for  the  estate  of  the  testator  or  a  part  of 
it,  and  then,  by  the  resignation  of  him  who  is  to  have  the  estate,  a 
conveyance  can  be  made  to  him  by  the  other  ;  and  this,  where,  as 
a  trustee,  he  is  still  in  privity  with  the  estate.  And  though  con- 
veyances to  trustees  may  be  examined  in  a  Court  of  Equity,  and 
set  aside,  as  it  regards  heirs  or  eestuis  que  trust,  still  the  convey- 
ance would  be  voidable  only  in  the  first  instance,  and  a  title  might 
perhaps  be  passed  to  strangers  purchasing  without  notice."  But 
it  has  been  held,  that,  where  land  is  sold  under  a  testamentary 
power  by  trustees,  an  executor,  not  one  of  the  trustees,  may  pur- 
chase.^ 

12.  The  same  principle  has  been  applied  to  guardians.  Thus  a 
guardian  sold  his  ward's  land  by  auction,  himself  being  the  auc- 
tioneer, and  employing  the  agent  to  bid  on  his  account.  A  ques- 
tion arising,  whether  the  bid  of  the  agent  or  a  higher  one  by  an- 
other person  was  the  last  before  the  hammer  was  down,  the 
guardian  decided  in  favor  of  the  former.  The  conditions  provided, 
that  the  buyer  should  take  the  land  at  an  estimated  quantity,  un- 
less he  elected  at  the  sale  to  have  it  measured.  The  agent  did 
not  so  elect,  but  the  guardian  had  the  land  measured,  and  it  fell 
below  the  estimate.  The  guardian  afterwards  sold  the  land  at  an 
advance,  but  in  his  account  charged  himself  only  with  the  price 
determined  by  the  measurement.  Held,  he  was  bound  to  account  for 
the  sum  for  which  he  resold  ;  and,  although  there  was  evidence  tend- 
ing to  show  a  rescinding  of  the  second  sale,  the  deed  not  being  on 
record,  but  within  the  power  of  the  guardian,  but  the  grantee  still 
remaining  in  possession  ;  still  the  guardian  could  not  claim  another 
sale,  to  determine  the  amount  which  he  should  account  for.^    But  he 


1  Shelton  v.  Homer,  5  Met.  462.  ^  Cudburry  v.  Duval,  10  Barr,  265. 

2  Ibid.  458,  per  Hubbard,  J.  *  Hayward  v.  Ellis,  13  Pick.  272. 


CHAP.    XXV.']  TRUST,    ETC.  397 

was  allowed  the  sum  [)ald  to  his  agent  for  his  serviees  in  i)urchas- 
ing  the  land.^ 

13.  Upon  the  general  grounds,  relating  to  ageney  and  trust, 
which  have  been  considered  in  this  chai)ter,  it  may  be  added,  by 
way  of  miscellaneous  examples,  that,  if  the  property  purchased  by 
a  trustee  is  a  lease,  and  he  renews  it  in  his  own  name,  the  renewal 
is  for  the  cestui's  benefit.  So  if  a  trustee  buys  in  an  incuDthrance 
upon  the  estate,  he  can  hold  it  only  as  security  for  the  sum  ]);iid 
by  him,  with  interest.^  So  where  one  of  several  reuiabider-tnen 
purchased  the  particular  estate  avowedly  for  all ;  held,  a  trust  for 
the  others.^  So  the  rule  applies  to  j^uhlic  trusts  ;  as  where  a  mem- 
ber of  the  legislature  sought  to  obtain  a  title  from  the  land-office, 
after  the  claimant  had  petitioned  for  confirmation  of  his  right.* 
And  it  has  been  adopted  in  church  as  well  as  state.  Thus,  where 
a  rector  was  authorized,  with  consent  of  the  bishop,  to  raise  money 
by  an  annuity  for  the  rectory  house ;  and  the  bishop  advanced 
the  money,  and  obtained  a  grant  of  the  annuity  charged  on  the 
living:  held,  the  proceeding  was  wholly  void.^(rt) 

14.  U{)on  similar  grounds,  wdiere  an  administrator,  who  was 
prosecuting  a  suit  in  the  name  of  an  intestate,  prevailed  on  one 
of  the  next  of  kin,  an  aged  lady  living  in  his  own  family,  under 
the  pretence  that  she  was  running  great  risk  by  the  suit,  to  release 
to  him  all  her  right  in  the  estate ;  held,  ho  could  not  be  permitted 
to  avail  himself  of  it.*^ 

1  Ibid.  ^  Anderson  v.  Bacon,  1  Mar.  51. 

2  Killiek    v.     Flexney,   4    Bro.    161;  4  O'Neill,  2  Bland,  151. 
Quackenbush  v.  Leonard,  9  Paige,  384  ;          5  Greenlow  v.  King,  o  Beav.  49.     fcjee 
Waters  v.  Bailey,  2  Y.  &  Coll.  Ch.  21 'J  ;  Fuller  v.  Dame,  18  Tick.  472. 

Tanner  v.  Elworthy,  4  Beav.  487  ;  Webb      "   «  Baxter  v.  Costin,  1  Busb.  Eq.  262. 
V.  Sugar,  2  Y.  &  Coll.  247. 

(a)  In  Arnold  t'.  Brown,  24  Pick.  89,  it  attaclied.  It  may  be  considered  in  tlie 
was  attempted  to  avoid  a  sale  of  personal  custody  of  the  law.  The  debtor  is  not 
property,  on  the  ground  that  it  was  pur-  considered  to  be  under  the  control  or  in- 
chased  b}'  an  attaching  officer,  subject  to  flucnce  of  the  officer,  nor  in  any  degree 
the  Uen  of  tlie  attachment ;  and  tliat  he  incapacitated  from  acting  for  himself,  and 
stood  in  such  a  fiduciary  relation  to  tlie  assisting  and  [inj  maintaining  his  own 
debtor  and  the  attaching  and  other  credi-  rights.  There  is  no  such  fiduciary  rela- 
tors, as  to  bring  the  case  within  the  princi-  tioh  between  them  as  to  form  any  obstacle 
pie  of  a  sale  of  trust  property.  But  this  i)rin-  to  their  contracting  with  each  other, 
ciple  was  held  inapplicable  to  such  a  case.  Their  interest  is  adverse,  and  there  exist 
Morton,  J.,  says  (p.  97),  "The  property  the  ordinary' securities  for  fair  dealing  and 
attached  bears  very  little  resemblance  to  equal  terms  in  their  negotiations."  He 
a  trust  fund,  and  the  slieriti' cannot  be  con-  proceeds  to  remark,  however,  that  the  re- 
sidered  as  sustaining  the  relation  of  agent  lation  of  these  parties  is  such  as  to  iniluce 
or  trustee  in  any  sense,  to  the  defendant  close  scrutiny  for  the  purpose  of  prevent- 
in  the  attachment.  He  is  the  officer  of  ing  any  fraud  or  oppression, 
the  law,  and  as  such  holds  the  property 


398  LAW    OF    VENDORS    AND    PURCHASERS.         [CHAP.    XXV. 

14  a.  Sales  for  taxes  often  call  for  the  application  of  the  rule 
in  question.  Thus  where  one  tenant  in  common  buys  at  a  tax 
sale,  another  shares  in  the  purchase. ^  So  an  agent  for  paying 
taxes  upon  land,  who  fails  to  pay  them,  and  allows  a  sale,  at 
■which  he  becomes  the  purchaser,  with  the  money  of  his  prin- 
cipal ;  holds  the  land  as  trustee,  and  will  be  compelled,  in  equity, 
to  convey  to  the  principal.^  So  a  vendee  is  liable  for  taxes,  though 
not  expressly  agreed.  Therefore  by  a  sale  for  taxes  he  cannot 
acquire  a  title,  nor  a  third  person,  who  buys  at  his  dictation,  in  the 
proceeds  of  produce  sold  from  the  land.^ 

15.  The  general  rule,  which  has  been  considered  in  this  chapter, 
being  established  for  the  protection  of  parties  who  have  entered 
into  a  confidential  relation  with  others, («)  it  follows,  as  a  neces- 
sary inference,  that  a  purchase  made  by  a  trustee  (and  the  same 
is  true  of  agents  and  all  other  parties  confidentially  employed)  is 
not  absolutely  void,  but  voidable  at  the  election  of  the  cestui,  within 
a  reasonable  time.  But  if,  after  notice  of  the  transaction,  the  latter 
confirms,  or  unequivocally  acquiesces  in  the  sale ;  this  will  be  a 
ratification  both  in  law  and  equity.^  Thus  a  cestui,  knowing 
of  a  purchase  of  the  trustee,  and  of  his  right  to  avoid  it,  may 
ratify  it,  by  assenting  to  the  application  of  the  purchase-money  to 
his  use.^  So  where  a  trustee  for  payment  of  debts  purchased  the 
estate  as  agent  for  his  father,  both  being  creditors  and  partners ; 
but  the  cestui  had  full  knowledge  and  took  the  sole  management 
of  the  sale,  making  surveys,  settling  the  particulars,  prices,  &c. : 
held,  the  purchase  was  good.^  So  A.,  in  anticipation  of  a  pur- 
.chase  of  land,  proposed  to  B.  to  become  interested  with  him  in  it. 

1  Butler  V.  Porter,  13  Midi.  292.  5  Beeson  v.  Beeson,  9  Barr,  279. 

2  Barton  v.  Moss,  32  111.  50.  6  Coles  v.  Trecothick,  9  Ves.  234.    See 
•*  Hunt  V.  Rowland,  22  Iowa,  53 ;  ace.     Murdock,  2  Bland,  467  ;  Allen  v.  Bryant, 

Miller  v.  Corey,  15  Iowa,  106.  7  Ired.  Eq.  276 ;  Kennedy  v.  Kennedy, 

4  Prevost  V.  Gratz,  1  Pet.  C.  C.  868;     2  Ala.  n.s.  572. 
Mason  v.  Martin,  4  Md.  124. 

(o)  Upon  this  ground  it  has  been  held,  eertained  to  be  such,  after  a  jealous  and 
that  though,  in  general,  a  person  who  un-  scrupulous  examination  of  all  the  circum- 
dertakes  to  act  for  another  cannot,  in  the  stances,  on  the  part  of  the  cestui,  that  the 
same  matter,  act  for  himself,  it  is  not  uni-  trustee  should  purchase  ;  and  if  there  is 
versally  true  that  a  trustee  cannot  pur-  no  fraud  or  concealment,  and  no  advan- 
chase  the  trust  estate ;  but  circumstances  tage  taken  by  the  trustee  of  information 
may  render  it  necessary,  in  order  to  pro-  acquired  by  him  in  that  character.  Bryan 
tect  the  interests  of  the  cestui  que  trust,  v.  Duncan,  11  Geo.  67.  A  trustee  may 
Spindler  v.  Atkinson,  8  Md.  409.  So  a  discharge  a  prior  incumbrance  for  the 
trustee  may  purchase  the  trust  property  benefit  of  the  estate,  and  reimburse  him- 
from  his  cestui  que  trust,  who  is  sui  juris,  if  self  out  of  the  trust  property.  Crutch- 
there  is  a  distinct  bond-jide  contract,  as-  field  v.  Haynes,  14  Ala.  49. 


CHAP.  XXV.]  TRUST,    ETC.  399 

B.  did  not  accept  the  proposition,  but  loaned  money  to  A.  with  an 
option  to  take  an  interest.  B.  did  not  give  any  notice  to  A.  of  his 
intention  to  do  so,  nor  pay  or  offer  any  money  beyond  the  loan, 
but  waited  till  it  appeared  that  the  purchase  was  a  profitaljle  one, 
and  then  filed  his  bill.  Held,  no  trust.^  And  the  same  rule  was  ap- 
plied, where  A.  induced  B.  to  enter  land,  and  agreed  to  purchase  it 
of  B.,  not  having  any  money  for  that  purpose  ;  and  then  contracted 
in  reference  to  the  sale  and  purchase  of  the  land,  upon  conditions 
precedent,  which  were  neglected,  and  B.  sold  the  land  to  another.- 
So  A.  agreed  with  B.  to  convey  to  him  the  undivided  half  of  certain 
land  for  a  stipulated  price,  subject  to  a  contract  with  C.  to  convey 
to  her  an  undivided  third  of  the  land  on  her  making  certain  pay- 
ments, in  which  case,  A.,  B.,  and  C.  were  each  to  have  one-third  of 
the  land,  but,  if  she  failed  to  pay  as  agreed,  her  contract  was  to 
be  void.  Held,  that  A.  did  not  stand  in  the  relation  of  a  trustee 
to  B.  so  as  to  preclude  him  from  buying  C.'s  interest  in  her  con- 
tract, and  that,  A.  having  bought  C.'s  interest  before  any  default 
by  her,  B.  was  entitled  to  have  an  undivided  third  only  of  the  land, 
and  of  course  was  not  bound  to  take  any  more  than  one-third.-'^ 

16.  By  virtue  of  the  same  qualification  of  the  general  rule  upon 
this  subject,  if  a  trustee,  who  himself  purchases,  make  improve- 
ments, he  will  be  allowed  therefor  upon  a  resale  ordered  by  the 
Court.  In  some  cases,  the  property  will  be  put  up  at  the  original 
price,  in  addition  to  the  cost  of  the  improvements,  and,  if  it  will 
not  bring  more  on  the  sale,  the  original  purchase  will  be  allowed 
to  stand.^  So  it  has  been  held,  that  a  bill  filed  by  a  cestui  que  trust, 
to  set  aside  a  sale  at  which  the  trustee  became  the  purchaser,  is 
demurrable,  if  it  does  not  contain  an  offer,  or  what  is  equivalent 
to  such  offer,  to  do  what  is  equitable,  by  the  repayment  or  allow- 
ance to  the  trustee  of  the  amount  actually  paid  by  him.^ 

17.  Uijon  the  filing  of  a  bill  in  equity  to  obtain  a  resale,  it  will 
be  referred  to  a  Master  to  settle,  whether  such  resale  would  be 
beneficial  to  the  plaintiff;  and,  if  made,  and  not  for  an  increased 
price,  the  trustee  will  be  required  to  complete  the  purchase.*^ 

18.  It  is  said,  "  strangers  to  the  property  cannot  call  the  sale  in 
question.  It  is  an  abuse  of  authority,  which  may  be  taken  ad- 
vantage of  by  any  one  whose  interest  is  affected.     Hence  cestuis 

1  Loomis  V.  Loomis,  28  111.  454.  *  Mason  v.  Martin,  4  Mtl.  124. 

2  Greene  v.  Cook,  2'J  III.  186.  ■  5  Qunn  v.  Brantlev,  21  Ala.  633. 

3  Davidson  v.  Van  Pelt,  15  Wis.  341.  «  CampbeU  v.  Walker,  5  Ves.  078. 


400  LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXV. 

que  trusts^  and  all  for  whom  the  trustee  or  agent  acted,  have  an 
option  to  avoid  the  sale  and  retain  the  property  sold,  or  to  confirm 
the  sale  and  receive  the  consideration,  as  may  be  for  their  in- 
terest." ^  But  neither  remainder-men,  strangers,  nor  parties  to 
the  deed,  nor  those  claiming  under  them,  nor  the  trustee  himself, 
can  avail  themselves  of  the  objection.  Though  the  representatives 
of  the  party  beneficially  interested  may  avoid  such  sale.-(a) 

19.  Whether  a  sale  at  auction  falls  within  the  general  prohibition 
upon  this  subject,  is  a  point  not  fully  settled.  The  weight  of  au- 
thority is,  that  it  does.'"^  Thus  it  is  held,  that,  though  a  trustee 
may  purchase  the  property  levied  on  and  sold  at  a  sheriff's  sale, 
at  the  instance  of  others,  and  will  be  entitled  to  reimbursement 
for  his  expenditures  in  the  purchase ;  he  cannot  deprive  the  cestui 
of  any  benefit  arising  from  such  purchase.*  It  has  been  doubted 
whether  the  general  rule  applies,  where,  in  case  of  a  trust  for 
creditors,  a  majority  of  them  assent,  or  where  the  estate  is  sold 
under  a  decree  in  chancery,  by  an  open  bidding  before  the  Master. 
But  a  sale  is  not  valid  merely  because  it  is  judicial ;  more  espe- 
cially when  made  at  the  instance  of  the  trustee  himself.  Nor 
because  it  is  a  public  sale.  So  where,  in  a  sale  made  by  execu- 
tors, one  of  them  became  joint  purchaser  and  afterwards  sole 
owner ;  held,  the  land  was  liable  to  by  creditors,  though  the  sale 
was  ratified  by  the  heirs  and  devisees.^ 

1  Per  Morton  J.,  Litchfield  v.  Cud-  ton  v.  Drayton,  1  Des.  567;  Hudson  v. 
worth,  15  Pick.  31.  Hudson,  5  Munf.  180. 

2  Thorp   V.    M'Cullum,   1  Gilm.   614;  *  Spindler  v.  Atkinson,  3  Md.  409. 
Painter  v.  Henderson,  7  Barr,  48 ;  Weel-          5  Wiggins,  1  Hill's  Clia.  354 ;  AVhelp- 
liers,  &c.  2,  71 ;  Ward  v.  Smith,  3  Sandf.  dale  i'.  Cookson,  1  Ves.  9  ;  Bruch  v.  Lantz, 
Cha.  592 ;  Pitt  v.  Petway,  12  Ired.  69.  2  Eawle,  392 ;  Camphell  v.  Pennsylvania, 

^  See  Kogers  v.  Rogers,  1  Hopk.  527 ;     &c.  2  Whart.  53. 
Eichelberger  v.  Barnitz,  1  Yea.  312 ;  Dray- 

(«)  The  mortgagee  or  creditor  in  a  repayment  to  him  of  the  purchase-money, 

trust  deed  may  purchase  at  the  sale  pro-  Walker  v.  Brungard,  13  S.  &  M.  723. 

vided  for  by   the  deed.      But  in  case  of  One    trustee     cannot    purchase    from 

any  want  of  fairness  and  good  faith,  or  another.     Case   v.   Aboel,   1  Paige,  393 ; 

abuse  of  his  power,  he  will  be  regarded  Ringgold  t-.  Ringgold,  1  Har.  &G.  11.    See 

as  iiolding  the  property  only  as  security  Giddings  v.  Eastman,  5  Paige,  561. 

for  his  debt.     Lyon  v.  Jones,  6  Humph.  Where   one  trustee  purchases  at   the 

533.  sale  of  another,    such    sale   will   not   be 

So  a  plaintiff,  creditor,  or  mortgagee,  wholly  void  for  fraudulent  acts  of  the 
may  purchase  at  a  sale  made  by  a  trustee,  seller,  unless  the  purchaser  is  shown  to 
and  the  purchase-money,  after  deducting  be  connected  with  them.  Beeson  v.  Bee- 
all  commissions,  expenses,  and  costs,  may  son,  9  Barr,  279. 

be   discounted   from,   or  applied   to,   the  Although  a  trusteee  cannot  become  a 

debt  due  such  purchaser.    Murdock's  case,  purchaser  of  the  trust  estate,  there  is  no 

2  Bland,  461,  468.  reason  why  he  should  not  occujty  it,  if  he 

A  cestui  que  Irust  may  purchase  at  a  accounts  for  the  rents,  and  to  the  amount 

sale  of  the  trust  estate ;  and  does  not  be-  the  Court  may  consider  reasonable.    Root 

come  a  trustee  for  other  parties,  without  v.  Yeomans,  15  Pick.  495. 


CHAP.    XXV.]  TRUST,   ETC.  401 

20.  As  to  the  time  at  which  a  purchase  made  by  the  trustee  must 
be  disaffirmed  ;  it  is  said,  the  ceatui  que  trust  "  must  not  lie  by  to 
speculate   upon   events ; "  ^  but  disaffirm  the  sale  in  reasonable 
time,  according  to  the  circumstances  of  the  case.^    Thus  reversion- 
ary leases  at  an  undervalue,  obtained  by  an  agent  from  his  prin- 
cipal, the  relation  of  creditor  and  debtor  also  subsisting,  after  an 
acquiescence  of  twenty-seven  years,  will  not  be  set  aside  ;  the  fidu- 
ciary character  having  during  that  period  ceased  to  exist,  and  the 
transactions  being  recognized  on  oath  by  the  principal,  as  fair.     So 
a  sale  of  the  reversion,  upon  a  calculation  of  the  rents  reserved 
on  such  leases,  cannot  therefore   be  impeached ;  being  in  other 
respects  fair,  and  acquiesced  in   for  almost  twenty  years.^      So 
specific  performance  was  refused  on  the  laches  and  trifling  conduct 
of  the  plaintiff;  the  contract  being  for  a  sale  to  the  plaintiff,  under 
a  bankruptcy,  of  a  reversionary  interest  for  life,  which  in  the  in- 
terval fell  into  possession.     The  defendants  having  also  been  in 
some  degree  remiss,  the  bill  was  dismissed  without  costs,  upon 
delivering   up   the    agreement.*      So   when    a    trustee,   with   the 
knowledge  of  his  cestui  que  trust,  makes  a  conveyance  apparently 
in  derogation  of  the  trust,  and  undisturbed  possession  is  held, 
and  improvements  made,  for  fifty  years,  by  the  grantee  and  those 
claiming  under  him,  no  claim  being  asserted  by  the  cestui  que 
trust ;  \t  may  be  presumed  that  he,  for  a  sufficient  consideration, 
directed,  or  acquiesced  in,  the  conveyance.^(a)     But,  on  the  other 
hand,  a  sale  was  made  under  a  deed  of  trust  in  March,  1847,  and 
the  trustee,  by  his  agent,  became  purchaser  of  the  land  for  his  own 
use.    The  cest^ii  que  trust  had  no  notice  of  the  sale,  and  it  did  not 
appear  when  she  first  discovered  that  the  agent  purchased  the  land 
for  the  trustee.     In  September,  1848,  the  agent  sold  and  conveyed 
the  land  to  A.,  and  in  September,  1850,  the  cestui  que  trust  filed  her 
bill  to  set  aside  the  first  sale.     Held,  that  this  was  not  an  unrea- 
sonable delay ;  and,  though  she  might  have  been  present  at  the 
last  sale,  and  made  an  offer  for  the  land,  she  would  not  be  con- 

1  Ball  V.  Carew,  13  Pick.  31.  *  Spurrier  v.  Hancock,  4_Ves.  667. 

2  Andrews  v.  Hobson,  23  Ala.  219.  ^  Williams  u.  First  Presbyterian,  &c. 

3  Medlicott  v.  O'Donnell,  1  Ball  &  Bea.  1  Ohio,  478. 
156. 

(a)  In   Pennsylvania,    a   purchase   of    years  after  the  sale,  or  within  ten  years 
land  by  an  administrator,  at  a  sale  of  tlie     .after  they  come  of  age,  if  tliey  were  tlien 
estateof  his  intestate,  if  not  actually  fraud-    minors.      Musselman    v.    Eshleman,    10 
ulent,   cannot  be  avoided   by  the   heirs,    Barr,  394. 
unless  suit  be  brought  within  twenty-one 

26 


402  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.   XXV. 

sidered  as  having  acquiesced  in  this  sale,  unless  she  was  aware 
that  the  trustee  had  violated  his  duty  in  making  the  first  sale.^ 

21.  The  sale  of  trust  property  to  the  trustee  cannot  be  avoided 
against  a  bond-fide  purchaser  or  mortgagee.^  Thus  a  debtor,  being 
in  failing  circumstances,  and  owing  to  five  of  his  creditors,  sever- 
ally, $7,540,  gave  them  therefor  a  judgment  bond;  and  A.,  as 
their  attorney,  entered  up  the  judgment,  and  issued  an  execution, 
upon  which  the  real  property  of  the  debtor  was  advertised  for  sale. 
Three  of  the  creditors  attended  the  sale,  in  the  absence  of  the 
other  two,  and  agreed  not  to  bid  against  each  other,  but  to  employ 
an  agent  to  bid  in  the  property,  and  to  divide  the  profits  of  the 
purchase  between  them  in  proportion  to  their  respective  debts ; 
and  for  this  purpose  they  employed  A.,  who  bid  in  the  property  for 
$625,  which  was  less  than  one-fifth  of  its  cash  value ;  and  a  few 
days  thereafter  he  sold  the  premises  for  $3,600,  and  divided  the 
profits  among  the  three  creditors.  Held,  the  purchase  was  fraudu- 
lent, as  against  the  other  two  ;  but,  being  made  to  a  bond-fide 
purchaser,  without  notice,  that  both  sales  must  stand ;  and  the 
three  creditors  must  account  to  the  other  two  for  their  shares 
of  the  proceeds,  in  proportion  to  their  several  interests  in  the  judg- 
ment.^ 

22.  With  regard  to  the  remedy  of  the  cestui  que  trust,  in  case  of 
a  purchase  by  the  trustee,  it  has  been  held,  that  it  must  be  more 
particularly  directed  to  the  property  itself  than  to  the  party  who 
has  committed  the  wrong ;  it  is  rather  in  rem  than  in  personam. 
Thus  an  agent,  appointed  to  sell  a  mortgage,  represented  to  his 
principal  that  he  could  get  no  more  than  a  certain  price  for  it, 
which  was  less  than  its  real  value,  and  bought  it  for  that  price. 
Held,  the  remedy  of  the  principal  was  not  an  action  for  fraud,  but 
a  claim  to  annul  the  sale,  or  for  an  account  for  the  true  value.* 
Where  one  in  possession  under  a  bond  buys  an  outstanding  title, 
this  inures  to  the  vendor.  In  a  suit  on  the  notes  given  for  the 
price,  the  adverse  title  is  no  defence,  but  the  cost  and  expense  of 
purchase  shall  be  allowed  to  the  vendee.^ 

23.  On  a  bill  to  set  aside  the  sale  of  an  estate,  on  the  ground  of 
fraud,  the  plaintiff  cannot  give  evidence  of  the  relation  of  attorney 
and  client  at  the  time  of  the  sale,  with  a  view  of  raising  an  infer- 

1  Mason  v.  Martin,  4  Md.  124.  ^  Thompson  v.  Hallet,  26  Maine,  141. 

2  Bobbins  v.  Bates,  4  Cush.  104.  5  Ash  v.  Holder,  36  Mis.  163. 

3  Hawley  v.  Cramer,  4  Cow.  718. 


CHAP.   XXV.] 


TRUST,   ETC. 


403 


ence  of  fraud ;  the  fact  not  being  stated  or  put  in  issue  by  the 
bill.i(a) 

1  Williams  v.  Llewellyn,  2  You.  &  Jer.  68. 


(a)  A.'s  interest  in  leascholtl  lands 
having  been  set  up  for  sale  on  execution, 
C,  his  attorney,  the  real  plaintiti'  in  one 
of  the  writs,  but  not  pressing  the  sale,  at- 
tendeil ;  and,  having  made  the  largest  bid, 
he  was  declared  the  purchaser.  He  paid 
the  purcliase-nioney,  which  was  not  more 
than  sutficient  to  satisfy  the  writs  prior  to 
his  own,  and  the  expenses.  A.  claimed 
the  benefit  of  the  purcliase,  alleging  that 
C.  bid  as  his  agent,  and  purchased  in  trust 
for  him,  which  C.  denied,  but  offered  to 
give  up  the  purchase  if  A.  would  pay  him 
the  purchase-money  and  other  demands 
he  had  on  him.  A.  was  not  then  able  to 
raise  the  money,  but  after  ten  years,  — 
during  which  C.  dealt  with  the  lands  as 
his  own,  —  he  filed  his  bill,  charging  that 
C.  bid  for  and  purchased  the  land  as  his 
agent,  in  trust  for  him  ;  that  C.  said  so  at 
and  after  the  sale  in  conversation  with 
friends  of  A.,  and  tliey,  on  that  under- 
standing, did  not  bid ;  all  of  which  C. 
positively  denied  in  liis  answer.  S.,  a 
witness  for  A.,  proved  conversations  be- 
tween himself  and  C,  as  charged  in  the 
bill.  Held,  1.  That  a  decree,  by  which 
the  bill  was  dismissed  upon  C.'s  under- 
taking to  release  A.  from  all  demands ; 
and  a  second  decree  by  which  the  former 
was  varied,  and  an  issue  directed  to  as- 
certain the  value  of  A.'s  interest  in  the 
lands  at  the  time  of  the  sale ;  were  both 
erroneous. 

2.  That  an  inquiry  as  to  such  value 
was  immaterial.  The  material  question 
being,  whether  C.  was  acting  on  behalf  of 
A.  in  bidding  and  purchasing,  C.  might 
take  an  issue  to  try  that  question ;  but,  if 
he  declined,  he  should  be  declared  a  trus- 
tee for  A. 

3.  That  A.'s  equity  was  not  affected  by 
the  lapse  of  ten  years,  there  being  no  ac- 
quiescence by  A.,  and  C.  being  aware  of 
his  rights. 

4.  That,  if  an  attorney  is  not  acting  as 
attorney  for  his  client  on  a  particidar  oc- 
casion, he  may  throw  off  that  character, 
and  exercise  his  independent  rights.  Aus- 
tin V.  Chambers,  6  Cla.  &  Fin.  1. 

In  illustration  of  the  general  principle 
stated  in  the  text,  we  may  refer  to  a  few 
miscellaneous  cases,  some  of  which  are 
not,  strictly  speaking,  purclums  of  mil 
properti/.  In  proof  of  tlie  universality  of 
the  rule,  it  is  said,  equity  will  never  per- 
mit a  trustee  to  secure  his  own  debt,  not 
secured  by  the  trust,  by  a  combination 


with  one  claiming  adversely  to  the  cestuis. 
Irwin  u.  Harris,  ti  Ireil.  Kcj.  21.5. 

ISo  the  reason  of  tlie  rule  is  said  to  be, 
not  that  there  Is,  but  there  inai/  he,  fraud. 
Brothers  v.  Brothers,  7  Ired.  Eij.  150. 

The  principle  is  often  applied  in  con- 
nection with  mort(i<i(]es  purchased  or  held 
by  the  trustee.  Thus  a  trustee  agreed  to 
purchase  a  farm  for  the  nMui  from  the  jiro- 
ceeds  of  trust  projierty.  He  bought  the 
farm,  giving  a  bond  and  mortgage  for  the 
price,  but  refused  to  pay  them,  and  pro- 
cured a  foreclosure  and  sale  by  the  mort- 
gagee at  a  heavy  loss.  Held,  he  was 
liable  for  such  loss.  Green  v.  Winter,  1 
John.  Cha.  27. 

Where  a  bank  was  bound  to  pay  off 
and  discliarge  a  mortgage,  so  as  to  relieve 
the  projierty  of  a  third  person  from  sale 
iinder  a  decree  of  foreclosure,  and  the 
cashier  attended  the  sale  as  agent  for  the 
bank,  and  bid  off  the  property  on  his  own 
account;  held,  equity  would  regard  him 
as  purchasing  for  the  benefit  of  the  bank, 
and  that  the  purchase  was  improper,  and 
should  be  set  aside.  Bank,  &c.  v.  Torrey, 
7  Hill,  260. 

A  trustee  sold  the  property  on  credit, 
taking  a  bond  and  mortgage  back,  an(l 
afterwards  repurchased  i)art  of  the  prop- 
erty, and  gave  credit  for  the  amount  on 
the  bond.  The  sale  beuig  rescinded,  held, 
the  cestui  que  trust  might  elect  to  claim  the 
property  or  the  money.  Sollee  v.  Croft, 
7  Kich.  Eq.  34. 

So,  where  a  trustee  became  the  owner 
of  land,  on  which  was  a  mortgage  belong- 
ing to  the  trust  estate,  cancelled  the  mort- 
gage on  the  record,  sold  one-third  of  the 
land,  taking  back  a  mortgage  for  the 
same  amount  as  the  former  one,  and  exe- 
cuted a  declaration  of  trust,  acknowledg- 
ing that  lie  held  it  in  trust  in  lieu  of  the 
former  one  ;  but  the  land  included  in  the 
latter  mortgage  was  greatly  inadequate 
security  :  on  a  bill  by  the  cestui,  setting 
forth  that  these  acts  were  done  without 
his  knowledge  or  consent,  and  that  the 
original  bond  and  mortgage  had  never 
been  paid,  a  decree  was  made,  establish- 
ing these  securities  as  still  valid,  securing 
the  rights  of  subsequent  bonu-Jide  mort- 
gagees, and  directing  a  sale  of  the  prop- 
erty, and  payment  b}'  the  trustee  of  any 
deficiency.  So  where  the  holder  of  a 
mortgage  assigned  it  in  trust,  for  the  ben- 
efit of  children,  and  afterwards  accepted 
a  re-assignment  of  it  from  the  assignee  in 
trust ;  held,  lie  was  accountable  as  trustee 


404 


LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXV. 


to  the  cestiiis.  So,  where  a  trustee  has 
borrowed  money,  and  with  it  purcliased 
other  property,  and  added  it  to  the  trust, 
and  repaid  tlie  borrowed  money  from  tlie 
proceeds  and  profits  of  the  trust  property  ; 
the  property  tluis  purchased  belongs  to  the 
beneficiary.  Wasson  v.  English,  13  Mis. 
176  ;  Butler  v.  Hicks,  11  Sm.  &  M.  78  ; 
Gilchrist  v.  Stevenson,  9  Barb.  9 ;  Stuart 
V.  Kissam,  2,  498 ;  Whichcote  v.  Law- 
rence, 3  Ves.  740. 

A  testator  died  insolvent,  in  1828,  leav- 
ing a  farm  and  liouse,  and  the  plaintiff, 
his  widow,  as  his  executrix.  She  arrang- 
ed with  A.,  a  relative,  to  buy  in  the  farm 
when  sold,  and  hold  it,  to  be  conveyed  to 
her  on  payment  of  the  purchase-money, 
on  wliich  she  was  to  pay  interest  quar- 
terly. In  1834,  A.  conveyed  to  one  of  the 
defendants,  her  step-son,  who  assented  to 
the  above  arrangement.  The  plaintiff  re- 
mained in  possession  till  1842,  the  prop- 
erty having  greatly  increased  in  value, 
when  the  step-son  refused  to  convey,  and 
conveyed  a  part  to  the  other  defendant. 
The  agreement  to  convey  was  made  at  or 
before  the  sale,  and,  in  consequence  of  it, 
the  estate  brought  •$1,000  less  than  A. 
paid.  The  plaintiff  had  for  some  years 
neglected  to  pay  the  interest,  and  paid 
none  of  the  principal.  The  plaintiff  files 
a  bill  in  equity  to  compel  specific  perform- 
ance of  the  agreement  to  convey  to  her, 
and  set  aside  the  conveyance  from  the 
step-son.  Held,  the  agreement  was  not  a 
mortgage,  and  did  not  create  a  construc- 
tive or  resulting  trust,  but  was  merely  ex- 
ecutory ;  and,  being  made  by  an  execu- 
trix with  her  relative,  it  was  a  fraud  on 
heirs  and  creditors,  a  breach  of  trust,  and 
against  public  policy,  and  therefore  void 
against  both  defendants  ;  the  purchaser 
from  the  step-son  being  a  purchaser  with 
notice.     Tufts  v.  Tufts,  3  W.  &  M.  456. 

The  general  rule  stated  in  the  text  is 
held  to  be  applicable  only  to  an  actually 
existim/,  not  to  a  past  trust,  or  one  with 
which  the  purchaser  is  not  himself  con- 
nected. It  is  said,  "  It  would  seem  to 
impose  an  unnecessary  hardship  and  dis- 
ability upon  him  who  had  been  a  cestui 
que  trust,  to  deprive  him  of  the  power 
of  dealing  with  him  who  had  been  the 
trustee,  but  who  had  discharged  himself 
or  been  released  from  his  duty  as  trustee. 
Such  dealing  would  be  good,  if  fair  and 
honest."  Per  Putnam,  J.,  Ball  v.  Carew, 
13  Pick.  31-2. 

One  of  two  partners,  in  his  own  name 
and  with  his  own  funds,  purchased  in  fee 
the  premises  on  which  the  firm,  under  a 
lease,  was  carrying  on  business  (after  the 
term  limited  for  the  partnership  had  ex- 
pired, but  before  actual  dissolution).  The 
piurchase  was  not  fraudulent,  but  made 


without  the  knowledge  or  consent  of  the 
copartner,  and  with  notice  that  he  was 
treating  for  a  purchase  for  partnership  use, 
and  was  not  any  part  of  the  firm's  ordi- 
nary business.  Held,  the  copartner  could 
not  claim  the  premises  as  partnership 
property.  Anderson  v.  Lemon,  4  Sandf. 
552. 

A.  mortgages  land  for  security  to  B., 
his  surety.  A.  then  transfers  to  C,  a 
creditor,  all  his  remaining  interest  in  the 
land,  without  the  knowledge  and  not  for 
the  account  of  B.,  and  afterwards  transfers 
such  interest  to  B.  Held,  in  the  absence 
of  fraud,  B.'s  purchase  was  not  invalid, 
as  made  by  a  trustee ;  that  relation  hav- 
ing ceased  by  A.'s  transfer  to  C.  Ball  v. 
Carew,  13  Pick.  28. 

So  a  trustee  may  become  a  purchaser, 
at  a  sale  made  bj'  virtue  of  proceedings 
prior  to  his  becoming  such.  Thus  the 
assignees  of  an  insolvent  may  purchase 
land  sold  on  execution  under  a  mortgage 
prior  to  the  assignment.  Fisk  v.  Lacher, 
6  W.  &  S.  18. 

The  circumstance  that  the  principal  or 
cestui  que  trust  has  not  relied  vipon  the 
party  confidentially  employed,  but  upon 
the  judgment  of  a  third  person  mutually 
referred  to,  has  been  held  to  render  the 
transaction  valid.  Bill  to  set  aside  tlie 
lease  of  a  farm  granted  to  a  steward  by 
liis  employer.  It  appeared  that  the  lease 
was  for  a  term  longer  than  was  usual  on 
the  estates,  and  was  granted  at  the  solici- 
tation of  the  steward,  on  an  agreement 
made  before  the  subsisting  lease  had  ex- 
pired, and  at  a  rent  lower  than  was  offered 
to  the  steward  on  behalf  of  the  occupying 
tenant ;  but  also  that  the  rent  to  be  paid 
liad  been  fixed  by  a  surveyor  named  for 
that  purpose  by  the  employer,  and  on  a 
valuation  made  in  the  surveyor's  usual 
manner,  and  that  the  offer  of  a  higher  rent 
was  known  to  the  employer  before  he  ex- 
ecuted the  lease.  Bill  dismissed,  with 
costs.  Selsey  v.  Rhoades,  2  Sim.  &  Stu. 
41. 

The  rule  does  not  apply,  unless  the 
property  purchased  really  as  well  as  nom- 
inally belongs  to  the  cestui.  Thus,  if  the 
guardian  or  trustee  for  an  infant  heir  or 
devisee,  the  real  title  being  in  a  tliird 
person,  buy  this  title,  this  shall  not  be  a 
trust  for  the  infant.  Lesley's  case,  2 
Freem.  52. 

The  general  principle  stated  in  the  text 
has  been  applied  with  strictness  to  as- 
signees of  bankrupts.  Tlius  the  assignees  of 
a  bankrupt  were  removed,  on  the  ground 
that  one  of  them  had  purchased  under 
the  commission,  for  himself.  A  resale 
was  directed,  and  the  purchaser  to  account 
for  a  profit  gained  by  him  upon  a  resale 
of  part.     Decreed  to  be  a  trustee  for  the 


CHAP.   XXV.] 


TRUST,   ETC. 


405 


original  vendor  as  to  tlie  sums  produced 
bv  such  second  sale.  Fox  v.  Mackreth, 
2'Bro.  C.  C.  400. 

So  an  assignee,  havino;  thus  purchased, 
was  held  a  trustee  of  the  profit  uikjii  a  re- 
sale ;  in  the  first  instance  for  an  equitable 
mortgagee  by  possession  of  tlie  deeds, 
although  he  had  delivered  them  up  on  re- 
ceiving the  produce  of  the  first  sale. 
Ex  parte  Morgan,  12  Ves.  (5. 

So,  if  an  assignee  purcliase  part  of  the 
bankrupt's  estate,  and  improve,  tlie  es- 
tate must  be  resold,  and  put  up  at  the 
price  given  by  tlie  assignee,  adding  the 
sum  laid  out  in  improvements.  Hewit,  2 
Mont.  &  Ayr.  477. 

A  common  agent  or  solicitor  in  court, 
employed  on  behalf  of  the  creditors  of 
the  estate  of  a  bankrupt  in  Scotland,  may 
be  considered  in  the  nature  of  a  trustee. 
A  purchase,  therefore,  by  him  of  any  part 
of  the  bankrupt's  estate  may  be  set  aside  ; 
and  at  all  events  will  be  so,  if  there  ap- 
pear any  circumstances  of  improper  or 
negligent  conduct.  York,  &c.  v.  Mack- 
enzie, 8  Bro.  P.  C.  42. 

Where  a  sole  assignee  wishes  to  bid, 
for  the  benefit  of  the  estate,  he  must  be 
removed,  or  a  tjiiasi  co-assignee  a])pointed 
to  protect  tlie  estate.  Ex  parte  Molineux, 
2  Mont.  &  Ayr.  24-5. 

An  assignee  desirous  of  purchasing 
must  first  obtain  the  consent  of  the  cred- 
itors, and  then  petition,  and  serve  the 
other  assignees,  and  also  the  bankrui)t, 
with  the  petition.  Ex  parte  Bage,  4  Madd. 
459. 

The  Court  will  not  confirm  such  pur- 
chase made  without  leave,  because  a 
meeting  of  creditors  has  consented.  Ex 
parte  Thwaites,  1  Mont.  &  A.  323. 

The  mortgagee  of  a  bankrupt's  estate 
may  be  allowed,  on  motion,  to  bid  for  it. 
Ex  parte  Marsh,  1  Madd.  148. 

And  the  Court  will  not  rescind  such 
purchase,  though  made  without  leave  of 
Court.  Ex  parte  Ashley,  1  Mont.  &  Ayr. 
82. 

So,  a  mortgagee  having  bid  without 
leave,  an  order  to  bid  nunc  pro  tunc  was 
made.  Ex  parte  Pedder,  1  Mont.  &  Ary. 
327. 

A  mortgagee,  with  power  of  sale,  him- 
self put  up  the  premises  for  sale,  and  then 
applied  for  leave  to  bid.  Held,  he  could 
not  be  permitted,  unless  he  waived  the 
power,  and  had  the  property  sold  under 
the  order  of  commissioners.  Ex  parte 
Davis,  1  Mont.  &  Ayr.  89. 

Similar  rules  have  been  applied  in 
other  cases,  analogous  to  proceedings  In 
bankruptcy.  Where  a  trustee  for  sale  of 
lands  for  payment  of  debts  pays  to  the 
value  of  tlie  lands,  he  thereby  becomes  a 
purchaser  himself.  Lambert  v.  Bainton, 
1  Cha.  Ca.  199. 


A  purchase  under  a  trust  for  payment 
of  del)ts  by  the  trustee,  as  agent  for 
his  father,  both  creditors,  in  i)artnership, 
was  established  under  the  circumstances, 
particularly  that  the  (-(Mui  iptc  trust  had 
full  information,  and  the  sole  management, 
making  surveys,  settling  the  particulars, 
fixing  the  prices,  &c.  Coles  v.  Trecothick, 
9  Ves.  234 ;  1  Smith,  233. 

W.,  being  indebted  to  C,  agreed  by 
deed  to  conve}'  his  estate  to  C.  upon  trust 
to  sell  the  same,  and  to  jiay  oif  certain 
debts  of  W.  due  to  other  persons,  and 
then  his  own  debt,  and  to  pay  over  the 
surplus,  if  any,  to  W.  No  conveyance 
was  executed.  C,  being  afterwards  in 
possession,  under  a  ji.  fa.  issued  on  a 
judgment,  upon  a  warrant  of  attorney 
given  by  W.,  agreed  with  W.'s  agent  to 
purchase  the  estate.  W.  ratified  the  con- 
tract, but  subsequently  impeached  it  as 
one  made  by  a  trustee  for  his  own  benefit, 
and  against  the  interest  of  tlie  cestui  que 
trust.  Held,  that  C.  was  not  a  trustee  for 
W.,  but  was  a  creditor,  holding  a  security 
for  his  debt,  and  that  the  contract  of  sale 
was  valid.  Waters  v.  Groom,  11  Cla.  & 
Fin.  684. 

A  trustee,  who  has  purchased  the  trust 
property  and  sold  it  at  a  profit,  and  is  com- 
pelled by  a  suit  in  equity  to  refund  that 
profit,  will  not,  except  in  case  of  moral 
fraud,  be  charged  with  costs.  Baker  v. 
Carter,  1  You.  &  Coll.  250. 

But,  where  trustees  for  sale  purchased 
through  a  trustee,  at  an  imdervalue, 
though  without  fraud,  and  by  auction ; 
and  the  cestuis  were  infants,  incapable  of 
discharging  the  trustees:  the  jiurchase 
was  set  aside,  with  costs.  Sanderson  v. 
Walker,  13  Ves.  601. 

The  following  was  a  form  of  decree 
against  a  trustee,  purchasing  at  an  alleged 
undervalue,  and  making  permanent  im- 
provements :  "  It  is  ordered  that  the  trus- 
tee shall  be  declared  purchaser  of  the 
premises  at  the  present  value ;  which  is 
not  to  be  less  than  the  price  of  the  origi- 
nal purchase,  with  the  permanent  im- 
provements. But,  if  the  Court  shall  ulti- 
mately decide  that  he  ought  to  be  allowed 
the  value  of  the  improvements,  or  any 
part  thereof,  then  so  much  of  the  pur- 
chase-money as  relates  to  the  improve- 
ments is  to  be  allowed  as  alread}'  paid  by 
him."  Williamson  v.  Seaber,  3  You.  & 
Coll.  717. 

So  a  trustee  for  sale  for  payment  of 
debts,  who  purchased,  himself,  by  taking 
undue  advantage  of  the  confidence  re- 
posed in  him  by  the  plaintiff,  and,  pre- 
vious to  the  com{)letion  of  the  contract, 
sold  at  a  highly  advanced  price  ;  was  dis- 
charged from  the  j)urchase  only  condi- 
tionally, in  case  the  resale  should  produce 
more.     Ex  parte  Reynolds,  5  Ves.  707. 


406  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 


CHAPTER    XXVI. 


NOTICE. 


1.     General  principles  as  to  notice.  9.    Notice,  to  whom  given;   agents,  soli- 

4.  Express  and  implied  notice.  citors,  &c. 

5.  Notice  sufficient  to  demand  inquiry.  12.     By  whom. 

6.  Implied  notice,  chiefly  as  arising  from  13.  Notice,  in  cases  of  lease  and  tenancy, 
possession  under  an  unrecorded  deed.  16.     Lis  pendens. 

1.  Having  in  the  foregoing  chapters  considered  the  causes, 
by  which  a  contract  for  the  sale  and  purchase  of  lands  may  be 
avoided  as  between  the  parties  themselves ;  we  proceed  to  inquire, 
under  what  circumstances  a  contract  binding  upon  the  parties 
is  valid  or  void,  as  to  third  2)erso7is  having  an  interest  in  the  prop- 
erty bargained  for.  This  question  commonly  turns  upon  the  point 
of  notice ;  it  being  the  general  rule  of  equity,  where  questions 
of  this  nature  usually  arise,  that  a  purchaser  with  notice.^  or 
one  informed  of  an  existing  contract  in  reference  to  the  prop- 
erty purchased,  although  it  have  not  been  actually  conveyed, 
takes  the  property  subject  to  that  contract,  and  will  be  com- 
pelled to  execute  it.  In  the  English  law,  the  subject  of  notice 
has  given  rise  to  very  numerous  and  various  questions,  and 
very  subtile  distinctions, (a)  connected  more  particularly  with 
actual  or  constructive /ratfcZ ;  but  in  tiie  United  States  these  have 
become  to  a  great  extent  unimportant  and  inapplicable,  by  reason 
of  the  registration  system  which  universally  prevails,  and  by  which 
the  recording  of  an  instrument  according  to  law  is  generally 
deemed  an  equivalent  or  substitute  for  actual  notice,  as  to  all  the 
world.     We  propose,  therefore,  only  to  state  a  few  of  the  leading 

(a)  The  English  Equity  Reports  abound  cases  relate,  not  to  mere  contracts,  but  to 

with  cases,  which  turn  upon  the  etiect  of  executed    conveyances,    which    do    not  fall 

express  or  implied  notice  ;   while  Ameri-  within  the  plan  of  the  present  work.    The 

can  cases  of  this  description  are  compara-  collateral  topics  of  Fraud,  Estoppel,  Trust, 

tively  rare,  except  as  connected  with  the  Alorlr/ac/e,  and  others  equally  co^jious,  into 

single  point  of  registration ;  showing  that  all  of  wliich   Notice   enters   as  a  leading 

the  subject  does  not  require  to  be  exhib-  element,  would  lead  to  inquiries  of  great 

ited,  in  all  its  complicated  details,  in  a  interest,  but  foreign  from  the  design,  and 

practical  American   treatise.     Moreover,  wholly  inconsistent  with  the  limits,  of  this 

a  large  proportion  even  of  the  American  book. 


CHAP.    XXVI.] 


NOTICE. 


407 


principles,  which  seem  to  be  well  established  by  the  weight  of 
authority,  (a) 

2.  It  is  held,  that  if  A.,  after  agreeing  to  sell  to  B.,  sells  and 
conveys  to  C,  who,  before  he  purchased,  had  been  told  "  that  A. 
had  sold  the  premises  to  B. ;  that  B,  had  purchased  it,  and  had  an 
article  for  it:"  C.  does  not  stand  in  the  situation  of  a  boiid-fide 
purchaser  without  notice,  entitled  to  the  special  favor  of  the  Court. 
Having  purchased  the  title  of  A.,  with  notice  of  at  least  some  claim 
on  the  part  of  B.,  he  stands  in  no  better  situation  than  A.  himself, 
and  must  stand  or  fall  by  the  merits  of  the  case,  as  it  exists  between 
A.  and  B.^(6)     So  a  parol  agreement  for  a  purchase,  and  posscs- 

1  King  V.  Morford,  1  Saxt.  Ch.  274.     But  see  Bradbyn  v.  Ord,  2  Atk.  241. 


(rt)  The  rules  as  to  notice  are  held  to 
apply  only  for  the  protection  of  the  prior 
equitable  rights  of  third  persons  against 
subsequent  purchasers,  claiming  adverse- 
ly ;  not  to  controversies  between  the  ven- 
dor and  purchaser.  Champlin  v.  Laytin, 
6  Paige,  189. 

It  is  said,  "  Valid  transactions,  as  be- 
tween the  parties,  may  be  fraudulent  by 
reason  of  covin,  collusion,  or  confederacy 
to  injure  a  third  person;  for  instance,  A. 
buys  an  estate  from  B.  and  forgets  to  reg- 
ister his  purchase-deeds  ;  if  C,  with  ex- 
press or  implied  notice  of  this,  buys  the 
estate  for  a  full  price,  and  gets  his  deeds 
registered,  this  is  fraudulent,  because  lie 
assists  B.  to  injure  A."  Per  Ld.  Mans- 
field, Worseley  v.  De  Mattos,  1  Burr. 
474. 

So  it  was  remarked  by  another  emi- 
nent Judge  :  "  Taking  of  a  legal  estate 
after  notice  of  a  prior  right,  makes  a 
person  a  maid  fide  purchaser.  This  is  a 
species  of  fraud,  and  dolus  mains  itself;  for 
he  knew  that  the  first  purchaser  had  the 
clear  right  of  the  estate,  and  after  know- 
ing that,  he  takes  away  the  right  of 
another  person  by  getting  the  legal  estate. 
And  this  exactly  agrees  with  the  defini- 
tion of  the  civil  law  of  dolus  tnalus.  Dig. 
lib.  4,  tit.  3,  lex  2.  Fraud  or  viala  Jides, 
therefore,  is  the  true  ground  on  whicli  the 
Court  is  governed  in  cases  of  notice." 
Per  Ld.  Hardwicke,  Le  Neve  v.  Le  Neve, 
3  Atk.  G54. 

So  it  has  been  said  to  be  mischievous 
to  consider  the  registry  as  notice  to  all  in- 
tents. Bushell  V.  Busheli,  1  Scho.  &  Lef 
103. 

Even  the  familiar  maxim,  "ifinorantia 
hcjis  neminem  excusat,"  has  been  dispensed 
with  in  reference  to  registry.      Thus  a 


statute  was  made  in  Ireland,  that  all  leas- 
es not  registered  by  such  a  day  should  be 
void.  The  respondent,  wlio  lived  in  the 
remotest  part  of  Ireland,  not  having  no- 
tice of  the  Act,  did  not  register;  where- 
upon another  lease  was  made  to  one  who 
had  notice  of  the  first,  and  registered,  and 
ejectment  brought  upon  it ;  but  the  re- 
spondent was  relieved.  Forbes  v.  Denis- 
ton,  4  Bro.  P.  C.  189. 

Annuity  granted  out  of  lands  in  Mid- 
dlesex, and  without  registry.  One  hav- 
ing notice  of  this  grant  purchases  the 
inheritance.  The  grantee  shall  have  his 
annuity  against  the  purchaser.  Chivall 
V.  Nicholls,  Stu.  6(14.  See  Beatniff  v. 
Smitli,  1  Eq.  Ca.  Abr.  357,  pi.  11 ;  Blades 
V.  Blades.  1  Eq.  Ca.  Abr.  358,  pi.  12  ;  lline 
V.  Dodd,  2  Atk.  275  ;  Le  Neve  v.  Le  Neve, 
3  Atk.  G46  ;  Sheldon  v.  Cox,  Ambl.  624 ; 
Jolland  V.  Stainbridge,  3  Ves.  478. 

(I>)  Upon  the  same  principle,  where 
one  purchases  an  estate,  pays  part  of  the 
price,  and  gives  bond  to  pay  the  residue, 
subsequent  notice  of  an  equitable  incum- 
brance before  such  payment  is  sufficient. 
Tourville  v.  Naish,  3  P.  Wms.  307  ;  Story 
V.  Windsor,  2  Atk.  G30  ;  More  v.  Mayhew, 
1  Clia.  Ca.  34  ;  2  Freem.  175,  pi.  235.  So, 
notice  of  an  incumbrance  after  payment, 
but  before  a  deed  is  executed.  Wigg  v. 
Wigg,  1  Atk.  384.  See  Gibson  i-.  Lair, 
37  Mis.  188 ;  Speakman  v.  Forepaugh,  44 
Penn.  363;  Laverty  v.  Moore,  33  N.Y. 
(6  Tiffa.)  658  ;  Merithew  v.  Andrews,  44 
Barb.  200.  Specific  jJiTformance  will  be 
decreed  against  a  venilor  and  his  grantee 
with  notice,  without  tender  of  a  deed. 
St.  Paul,  &c.  V.  Brown,  9  Min.  157.  A 
second  jnircliaser  witli  notice  camiot  have 
an  allowance  even  for  his  purchase-money 
and  taxes.     Forbes  o.  Hall,  34  lU.  107. 


408  LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 

sion  delivered,  was  decreed  to  be  performed  against  a  subsequent 
purchaser  with  notice,  who  had  a  conveyance  and  paid  his  money .^ 

3.  A  purchaser  with  notice,  from  one  without  notice,  is  held  a 
bond-fide  purchaser.^  So  a  bond-fide  pvirchaser,  for  valuable  con- 
sideration, is  protected  under  the  statutes  of  13  and  27  Eliz., 
whether  he  purchases  from  a  fraudulent  grantor  or  grantee,  and 
whether  the  first  deed  was  made  to  defraud  subsequent  creditors 
or  subsequent  purchasers.^ 

4.  Notice  is  either  express  and  actual  or  implied  and  construc- 
tive ;(^a^  but,  it  is  said,  there  is  no  difference  between  actual  and 
constructive  notice  in  its  consequences ;  ^  and  the  terms  actual  and 
constructive  are  said  to  be  indefinite  with  reference  to  notice.^ 
Actual  notice  is  such  as  men  usually  act  upon  in  the  ordinary 
affairs  of  life  ;  not  positive  and  certain  knowledge  (in  reference  to 
a  prior  deed)  of  its  existence,  as  by  seeing  it,  or  being  informed  of 
it  by  the  grantor  himself.^ 

5.  But,  beyond  tliis,  it  is  held  that  any  notice  is  sufficient,  which 
should  put  a  party  on  inquiry. '(]))  Information,  which  makes  it 
the  duty  of  a  party  to  inquire,  and  shows  where  such  an  inquiry 
may  be  effectual,  is  notice  of  all  facts,  which  might  be  thereby 
ascertained,  after  a  reasonable  time  for  making  the  inquiry.^     No 

1  Butcher  v.   Stapley,    1   Vern.  363;  7  Gibbes   v.    Cobb,   7   Rich.   Eq.    54; 

Smoot  V.  Rea,  19  Md.  398.  Rupert  v.  Mark,  15  111.  540  ;  M'Gehee  v. 

'^  Lowther  v.  Carlton,  3  Atk.  241.  Ghidrat,  20  Ala.  95;  Sergeant  v.  Ingersoll, 

3  Hood  V.  Fahnestock,  8  Watts,  489.  15  Penn.  343  ;  Smith  v.  Low,  1  Atk.  489. 

4  2  Sugd.  537.  8  Carr  v.  Hilton,  1   Curt.  390  ;  Ring- 

5  Jordan  v.  Pollock,  14  Geo.  145.  gold  v.  Bryan,  3  Md.  Ch.  488 ;  Stockett 

6  Curtis  V.  Mundy,  3  Met.  405.  v.  Taylor,  3  Md.  Ch.  537. 

(a)  Express  notice  of  a  deed  is  equiva-  to  justify  tlie  Court  m  breaking  in  upon  an 
lent  to  recording.  Knotts  v.  Geiger,  4  act  of  Parliament."  Per  Lord  Hard  wicke, 
Rich.  32 ;  Draper  o.  Bryson,  17  Mis.  71.  Hine  v.   Dodd,   2  Atk.  275 ;    6  Barb.  GO. 

(b)  Where  the  creditor  of  a  publican  in  See  p.  414.  So  it  has  been  held,  that  no- 
London  took  from  the  latter  a  legal  mort-  tice  of  an  unrecorded  deed  must  be  proved 
gage  of  copyhold,  knowing  that  the  pub-  beyond  all  reasonable  doubt.  Rogers  v.  Wi- 
lican  was  indebted  to  his  brewers,  and  also  ley,  14  111.  65.  So,  that  it  must  be  direct 
knowing  the  ordinary  practice  in  London  and  positive  or  implied,  not  merely  sufBcient 
of  publicans'  depositing  their  leases  with  to  put  the  party  on  inquiry.  Nor  is  a 
their  brewers  by  way  of  mortgage  ;  held,  suspicion  of  notice  sufficient.  Fort  v. 
such  notice  as  would  liave  put  a  prudent  Bunch,  6  Barb.  60. 

man  on  further  inquiry ;  and  that  the  The  purchaser  said,  in  a  conversation 
equitable  security  had  priority.  Whit-  with  a  tliird  person,  about  the  time  of  the 
bread  v.  Jordan,  1  You.  &  Coll.  303.  purchase,  that  "  he  had  understood  that 
It  is  to  be  observed,  that  some  author-  [his  grantor]  had  fooled  away  the  lot,  and 
ities  exact  more  stringent  express  notice  had  sold  it  several  times,  and  did  not  con- 
than  that  stated  in  the  text.  Thus  it  is  sider  it  worth  his  trouble  to  look  about 
said,  to  show  express  notice  the  proof  it."  Held,  this  conversation  did  not  jus- 
must  be  "  clear  and  unequivocal."  Per  tify  an  inference  of  notice.  Jackson  v. 
Wilde,  J.,  M'Meehan  ;;.  Griffing,  3  Pick.  Given,  8  Johns.  107.  Hearing  reports  or 
154.  So  it  is  said,  "  Suspicion  of  notice,  rumors  is  not  notice.  Colquitt  y.  Thomas, 
though  a  strong  suspicion,  is  not  sufficient  8  Geo.  258. 


CHAP.    XXVI.]  NOTICE.  409 

purchaser  is  at  liberty  to  remain  intentionally  ignorant  of  facts 
relating  to  his  purchase,  within  his  reach,  and  then  claim  protec- 
tion as  an  innocent  purchaser.^  Thus,  where  a  person  other  tlian 
the  grantor  is  in  possession,  it  is  the  purchaser's  duty  to  inquire 
into  the  title,  and  the  presumption  of  law  is,  that  upon  such  inquiry 
he  ascertains  the  true  state  of  the  title  ;  unless  he  makes  such 
inquiry,  a  fraudulent  intent  in  making  the  purchase  is  pre- 
sumed.2(a)  So  notice  of  a  judgment  against  a  vendor  is  sufficient 
to  put  a  purchaser  upon  further  inquiry.  Hence,  if  instead  of  a 
judgment  the  party  has  a  specific  incumljrance  on  the  property,  the 
purchaser  will  be  bound  by  it.^  Though  notice  to  a  purchaser  of 
judgments  against  the  vendor,  whose  estate  is  limited  to  uses  to 
bar  dower,  does  not  prevent  the  purchaser  from  taking  the  estate 
free  from  the  judgments,  under  an  exercise  of  the  power  reserved 
to  the  vendor."^  So  notice  to  a  purcliaser  that  there  is  a  lease  is 
notice  of  its  contents.^  So  notice  of  possession  by  a  tenant  is  notice 
of  his  interest.^  So,  of  his  interest,  either  as  tenant,  or  further,  by 
an  agreement  to  purchase.'^  So  a  purchaser,  with  notice  of  the 
tenant's  possession  of  pm't  of  the  estate,  has  constructive  notice  of 
the  whole  of  the  tenant's  interest.^  So,  although  notice  to  a  pur- 
chaser in  one  transaction  will  not  affect  him  in  an  independent 
subsequent  one ;  notice  of  a  deed  is  notice  of  the  whole  of  its  con- 
tents, so  far  as  they  can  affect  the  transaction  in  which  such  notice 
is  acquired.^ 

6,  The  class  of  cases  which  has  given  rise  to  the  most  numerous 
questions  as  to  notice,  is  that  of  implied  or  constructive  notice, 
usually  arising  from  the  occupation  and  improvement  of  the  land, 
by  one  not  having  a  perfect  legal  title.  On  the  general  subject  of 
implied  notice,  involving  in  part,  however,  what  has  been  already 

1  Jenkins  v.  Eldredge,  2  Story,  181.  6  Heirn  v.  Mill,  13  Ves.  114. 

2  McLaughlin  v.  Shepherd,  32  Maine,  "^  Daniels  v.  Davison,  16  Ves.  249. 
148.  8  Powell  V.  Dillon,  2  Ball  &  Boat.  416. 

3  Taylor  v.  Baker,  Dan.  71.  9  Hamilton  v.  Royse,  2  Sclio.  &  Lef. 

4  Eaton  V.  Sanxter,  6  Sim.  517.  327. 

5  Hall  V.  Smith,  14  Ves.  426. 

(a)  But  constructive  notice  of  title  is  tive  notice   consists  of  a  knowledge   of 

not  sufficient  to  postpone  the  owner  of  facts  which  should  lead  to  further  in(iuiry. 

land  to  a  purchaser  having  equal  notice,  The  inquiry  need  be  only  of  a  party  in 

because  the  owner,  knowing  of  the  in-  interest,  unless  tiie  information  confirms 

tended  sale,  permits  it  without  objection;  prior,  or  shows  new  grounds  of  suspicion, 

unless  there  be  actual  notice  of  .his  right,  Constructive  notice  does  not  excuse  actual 

or  positive  acts  inducing   the   purcliase.  fraud.     Converse  v.  Blumrich,  14  Mich. 

Paul  V.  Squibb,  12  Penn.  296.     Construe-  109. 


410  LAW  OP  VENDORS  AND  PURCHASERS.    [CHAP.  XXVI. 

suggested  with  regard  to  a  certain  kind  of  express  notice  ;(«)  it  is 
held  that  tlie  doctrine  of  constructive  notice  appHes  in  two  cases  ; 
first,  where  the  party  charged  has  notice  that  the  property  in  dis- 
pute is  incumbered,  or  in  some  way  affected,  in  which  case  he  is 
deemed  to  have  notice  of  the  facts  and  instruments,  to  a  knowledge 
whereof  he  would  have  been  led  by  due  inquiry  after  the  fact  which 
he  actually  knew ;  and,  secondly,  where  the  conduct  of  the  party 
charged  evinces  that  he  had  a  suspicion  of  the  truth,  and  wilfully 
or  fraudulently  determined  to  avoid  receiving  actual  notice  of  it.^ 
7.  But,  as  has  been  stated,  the  terms  implied  notice  are  commonly 
applied  to  the  inference  arising  from  possession  of  the  land?  Our 
plan  does  not  lead  to  a  statement  of  the  numerous  cases  of  this 
class,  in  which  a  subsequent  recorded  conveyance  is  relied  upon  on 
one  side,  and  a  prior  unrecorded  conveyance  on  the  other ;  the 
second  grantee  being  alleged  to  have  implied  notice  of  the  former 
deed,  growing  out  of  the  occupation  of  the  first.  The  questions 
arising  from  a  mere  sale  of  the  land,  not  consummated  by  a  con- 
veyance, have  been  comparatively  rare ;  but  the  principle  involved 
is  substantially  the  same  ;  and  indeed  a  conveyance  not  registered 
bears  a  very  close  analogy  to  a  mere  executory  contract,  (i)  Thus 
it  has  been  held,  that,  where  a  parol  sale  of  lands  has  been  made, 
money  paid,  and  possession  delivered,  the  contract  is  good  between 
the  parties,  but  not  against  a  hond-fide  purchaser,  without  clear 
evidence  of  notice  to  him,  either  actual  or  legal ;  that  legal  notice 
exists  only  where  there  is  a  violent  presumption  of  actual  notice  ; 
and  that  undisturbed  possession  by  the  equitable  owner  has  gener- 
ally been  considered  legal  notice ;  but  it  must  be  a  clear,  open, 
notorious,  and  unequivocal  possession  ;  mere  occasional  entries,  as 
for  mining,  are  not  sufficient.  So  where  A.  bought  by  parol  from 
B.  a  corner  of  B.'s  tract,  paid  for  it,  was  put  into  possession,  and 

1  Jones  V.  Smith,  1  Hare,  43.  104  ;    Dickey   v.  Lyon,   19    Iowa,   544 ; 

2  See  Woodward  v.  Clark,   15  Mich.     Reeves  v.  Ayers,  38  111.  418. 

(a)  Meaning  by  express  notice,  that  subject  to  a  life-interest  in  his  mother, 
which  is  expressly  communicated,  though  who  really  was  the  owner  in  fee,  conveyed 
not  in  such  a  way  or  from  such  a  source  all  his  interest  to  trustees  for  the  benefit 
as  to  be  absolute  and  positive,  in  contradis-  of  his  creditors,  with  covenants  for  title 
tinction  to  that  which  is  to  be  inferred  and  for  further  assurance.  Upon  her 
from  facts  and  circumstances.  Such  is  death  the  fee  descended  to  him.  Held, 
the  notice,  which  is  held  suflBcient  to  put  although  not  a  valid  conveyance,  the  trans- 
a  party  on  inquiry.  See  Howorth  v.  Deem,  action  amounted  to  a  contract  for  sale, 
1  Ed.  351.  wliich  the  defendant  was  in  equity  com- 

(b)  The  defendant,  under  the  belief  pellable  to  execute.  Smith  v.  Baker,  1 
that  he  had  the  fee-simple  in  an  estate.  You.  &  Coil.  223. 


CHAP.    XXVI.]  NOTICE.  411 

had  buildings  erected,  but  at  the  same  time  had  no  survey  of  the 
part,  or  other  admeasurement  to  reduce  it  to  certainty,  and  on  B.'s 
own  part  there  was  a  forge,  dwclling-liousc,  grist  and  saw  mill,  and 
buildings  for  the  workmen,  which,  with  A.'s  building,  might  strike 
the  eye  as  one  establishment ;  tlie  possession  of  A.  was  held  not  to 
be  legal  notice  of  his  title  to  a  purchaser  at  sherifFs  sale,  under  a 
judgment  against  B. ;  but  the  equity  of  such  purchaser  would  pre- 
vail ;  particularly  if  A.  gave  no  actual  notice  of  his  title,  when  he 
probably  knew  of  the  judgment,  execution,  and  sale.^  So  under 
an  agreement  of  exchange  between  A.,  who  held  lands  under  a 
college  lease,  and  B.,  the  owner  of  an  adjoining  estate,  B.  occupied 
part  of  the  college  lands,  and  A.  had  occupied,  along  with  the  res- 
idue of  the  leasehold,  part  of  B.'s  estate.  A.  having  become  bank- 
rupt, the  college  leasehold  was  sold,  and  was  described  in  the 
particulars  of  sale  as  "  late  the  residence  of  A."  Held,  the  pur- 
chaser was  not  to  be  considered  as  having  implied  notice  of  the 
exchange,  and  had  a  riglit  to  recover  tliat  portion  of  the  leasehold 
which  was  in  B.'s  occupation.^  So,  where  a  part  of  an  unimproved 
tract  of  land  was  sold  under  articles  of  agreement  not  recorded, 
the  price  paid,  possession  delivered,  a  survey  made,  but  no  house 
or  division  fence  built  thereon ;  the  sale  is  not  good  as  against  a 
subsequent  purchaser  at  a  sheriff's  sale  of  the  whole  tract  upon 
a  judgment  against  the  vendor,  if  the  second  purchaser  has  neither 
actual  nor  constructive  notice  of  the  right  of  the  first  purchaser.-^ 

8.  In  case  of  an  unrecorded  prior  conveyance,  it  has  been  some- 
times held,  that  the  possession  of  the  grantee  is  of  itself  construc- 
tive notice,  equivalent  to  that  derived  from  registration. (a)  But 
the  prevailing  doctrine  is  now  otherwise.  Thus  it  is  said,'^  "  the 
doctrine  in  the  English  law  of  constructive  notice  of  the  title  of 
the  lessee,  or  party  in  the  possession,  is  not  favored  in  tlie  Ameri- 
can courts."  So  Judge  Story  says,  "  The  American  courts  seem 
indisposed  to  give  effect  to  this  doctrine  of  constructive  notice  from 

1  Billington  v.  Welch,  5  Binn.  129,  131 ;  48  Penn.  238. 

2  Miles  r.  Langley,  1  Russ.  &  Myl.  39  ;  2  ib.  626. 

3  Meehan  v.  Williams,  48  Penn.  238. 
*  4  Kent,  179,  n. 

(a)  In  Illinois,  a  late  case  so  decides.  ac<Ho/ Ho^/ce  of  an  unrecorded  deed,  witliin 

Rupert  V.  Mark,  15  111.  540.     See  Mill  v.  the  terms  of  the  statute ;  still  tliey  make 

Hill,  22  Eng.  Law  &  Eq.  20.  such  an  adverse  possession,  as  will  render 

It  has  been  recently  held  in  ^lu-higan,  the  subsequent  conveyance  void  at  com- 

that,  although  the  possession  and  improve-  mon  law.     Hubbard   v.    Smith,  2   Mich, 

ments  of  a  purchaser  do  not  constitute  2U7. 


412 


LAW    OF   VENDORS   AND    PURCHASERS.       [CHAP.   XXVI. 


possession,  even  in  its  most  limited  form.  The  English  cases  ad- 
monish Courts  of  Equity  in  this  country,  where  the  registration  of 
deeds,  as  matters  of  title,  is  universally  provided  for,  not  to  enlarge 
the  doctrine  of  constructive  notice,  or  to  follow  all  the  English 
cases  on  this  subject,  except  with  a  cautious  attention  to  their  just 
application  to  the  circumstances  of  our  country,  and  to  the  struct- 
ure of  our  laws,"^  So  it  is  held  in  Massachusetts,  that,  although 
open  and  notorious  possession  and  improvement  of  real  estate  has 
generally  been  held  sufficient  constructive  notice  of  a  deed ;  yet 
the  evidence  must  have  been  such  as  to  render  the  inference  not 
merely  probable,  but  necessary  and  unquestionable.  Thus  it  was 
held  not  to  arise,  where  an  owner  of  land  purchases  land  adjoining 
and  not  separated  by  a  fence,  and  principally  woodland,  repairs  the 
fence,  pastures  cattle,  and  sells  trees.^  And  it  has  since  been  held, 
as  a  general  rule,  that  open  and  visible  possession,  cultivation,  and 
the  making  of  permanent  improvements  are  insufficient  notice  of 
an  unrecorded  deed.3(a)  So  it  has  been  held  in  New  Hampshire, 
that,  in  order  to  have  this  effect,  the  possession  must  be  exclusive 
and  unequivocal.     A  mixed  possession  is  not  sufficient.'*(6) 

1  riagg  V.   Mann,  2  Sumn.   291,  555,  2  M'Mechan  v.   Griffing,  3  Pick.  149. 

556.    But  see  Matthews  v.  Demerritt,  22    See  Butler  u.  Stevens,  2G  Maine,  484. 
Maine,  312.  3  Pomroy  v.  Stevens,  11  Met.  244. 

4  Bell  V.  Twilight,  2  Post.  500. 


(a)  Wherea  deed  is  made  and  recorded, 
with  a  defeasance  back,  which  is  not  re- 
corded, the  continued  possession  of  the 
grantor  is  not  implied  notice  of  such  de- 
feasance. Hennessey  v.  Andrews,  G  Cash. 
170. 

(6)  It  is  held,  that  even  registration  is 
not  constructive  notice,  unless  authorized 
by  law  ;  as  in  case  of  an  unacknowledged 
deed.  Johns  v.  Reardon,  3  Md.  Ch.  57. 
Or  an  unsigned  deed ;  although  the  sig- 
nature be  subsequently  registered,  but 
unseasonably.  Shepherd  v.  Burkhalter, 
13  Geo.  443.  Ace.  Dennis  v.  Loftin,  6 
Tex.  489 ;  Brown  v.  Budd.  2  Cart.  442. 
See  Delane  v.  Moore,  14  How.  U.S.  253. 
So  registry  of  a  defective  deed  is  void. 
Pope  V.  Henry,  24  Verra.  560.  In  order 
to  maintain  a  title  against  a  prior  unre- 
corded deed,  the  purchaser  must  prove 
payment  of  a  valuable  consideration.  The 
recitals  in  liis  deed  are  not  evidence  of 
such  payment.  Nolen  v.  Gwynn,  16  Ala. 
725.  The  rule,  that  a  purchaser  for  valu- 
able consideration,  without  notice,  is  pro- 
tected by  the  legal  estate,  applies  where 
his  title  is  impeached,  not  only  by  some 
secret  act  of  the  vendor  or  those  under 


whom  he  claims,  but  by  the  falsehood  o  f 
a  fact  of  title  asserted  by  the  vendor  or 
those  under  whom  he  claims;  provided 
sucli  title  is  clothed  witli  possession,  and 
the  falsehood  could  not  have  been  discov- 
ered bj'  reasonable  diligence.  Jones  v. 
Powles,  3  Myl.  &  Kee.  581. 

A  defendant,  stating  by  answer  a  pur- 
chase for  valuable  consideration  without 
notice,  shall  not  bo  compelled  to  answer 
further.  And  equity  will  not  take  the  least 
step  against  such  purchaser,  not  even  to 
perpetuate  testimony  against  him.  Jer- 
rard  i'.  Saunders,  2  Ves.  454. 

Bill  by  tenant  in  tail,  in  possession  un- 
der a  marriage  settlement,  for  discovery 
and  delivery  of  title-deeds.  Plea,  mort- 
gage by  the  tenant  for  life,  alleging  him- 
self to  be  seised  in  fee,  and  in  possession 
of  tlie  premises  and  deeds  as  apparent 
owner.  Plea  allowed  ;  upon  the  rule  that 
equity  gives  no  assistance  against  a  pur- 
chaser for  valuable  consideration  without 
notice.  Wallwynn  v.  Lee,  9  Ves.  24. 
But,  if  a  person  will  purchase  with  notice 
of  another's  right,  giving  a  consideration 
will  not  avail  him.  Mead  v.  Orrery,  3 
Atk.  23  8. 


CHAP.    XXVI.]  NOTICE.  413 

9.  Notice  to  one,  wlio  purchases  or  sells  for  another,  affects  the 
latter.^ (a)  So  notice  to  a  solicitor  is  actual  notice  to  the  client.'^ 
Thus  A.,  having  notice  of  an  incunil)rancc,  purchases  in  the  name 
of  B.,  who,  however,  neither  employed  A.,  nor  knew  that  the 
purchase  was  to  be  made.  A.  then  agrees  that  B.  shall  be  the 
purchaser,  and  B.  accordingly  pays  the  purchase-money,  without 
notice  of  the  incumbrance.  '  Held,  that  B.,  by  approving  the  pur- 
chase, made  A.  his  agent,  ah  initio^  and  therefore  was  affected  with 
the  notice  to  A.^  So  mere  implied  notice  to  an  agent  binds  the 
principal.*  Though  the  rule,  that  a  purchaser  is  in  equity  charge- 
able with  constructive  notice  of  the  contents  of  a  deed,  which  came 
to  the  knowledge  of  his  agent  in  the  investigation  of  the  title,  does 
not  apply  as  between  the  vendor  and  the  purchaser  ;  it  applies  only 
as  between  the  purchaser  and  third  persons  having  prior  equitable 
rights.^  So  A.  agrees  to  take  a  lease,  but,  previous  to  signing  the 
articles,  has  notice  that  B.  has  a  prior  agreement  for  a  lease,  and 
procures  the  lease  to  be  granted  to  his  son.  Held,  this  notice 
affected  the  son,  and  that  he  should  deliver  up.  the  possession.^ 

10.  If  the  same  person  is  agent  both  for  the  vendor  and  pur- 
chaser, or  is  himself  vendor  and  agent  for  the  purchaser,  whatever 
notice  he  may  have  will  affect  the  purchaser.'  Thus  a  purchaser, 
having  employed  the  vendor's  agent,  who  had  notice  of  an  incum- 
brance, was  charged  with  notice,  though  the"  purchase  was  made 
under  the  sanction  of  the  Court,  and  an  infant  was  interested  in 
it.^  So,  after  the  commencement  of  a  treaty  for  the  sale  of  an 
estate  by  A.,  and  the  purchase  of  it  by  B.,  A.  agreed  to  give  C.  a 
mortgage  as  security  for  an  antecedent  debt,  and  notice  of  the 
agreement  was  given  to  the  solicitors  of  B.     The  treaty  for  the 

1  Merry  i-,  Abney,  1  Cha.  Ca.  38 ;  1  5  Champlin  v.  Laytin,  18  Wend.  407. 
Eq.  Ca.  Abr.  330 ;  Maddox  v.  Maddox,  ^  Coote  v.  Mammon,  5  Bro.  P.  C.  355. 
1  Ves.  61 ;  Sheldon  v.  Cox,  Ambl.  624.  7  Dryden  v.  Frost,  3  Myl.  &  Cra.  670  ; 

2  Tunstall  v.  Trappes,  3  Sim.  301.  Majoribanks  v.  Hovenden,  6  Ir.  Eq.  238. 

3  Jennings  v.  Moore,  2  Vera.  609.  ^  Toulmin  v.  Steere,  3  Mer.  210. 
*  Attorney-General    v.  Gower,   3  Eq. 

Cas.  Abr,  685,  pi.  11. 

(a)  Because   otherwise,  as  is  said,  a  tice  merely,  which  is  properly  referable 

man  who  had  a  mind   to   get  another's  to  something  that  a  party  or  his  agent 

estate  might  shut  his  own  eyes,  and  em-  ought,   if  reasonable  diligence  had  been 

ploy  another  to  treat  for  him,  who   had  used   on  his  behalf,  to  have   acquired  a 

notice  of  a  former  title,  which  would  be  knowledge  of,  but  which  possibly  neitiier 

a  manifest   cheat.     Attorney-General   v.  he  nor  his  agent  ever  did  know  or  acquire 

Gower,  3  Eq.  Ca.  Abr.  685,  pi.  11.     No-  any  knowledge  of     Lenehan  v.  M'Cabe, 

tice  to  an  attorney  or  agent  is  not  to  be  2  Ired.  Eq.  342.  Notice  h'mds  ])art-jiiirclt(is- 

considered  as  implied  or  constructive  no-  e;s.    Middleton  v.  Dubuque,  19  Iowa,  408. 


414  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 

sale  afterwards  ceased  for  upwards  of  five  years,  during  part  of 
which  time  the  suit  of  an  adverse  claimant  was  pending.  A.  then 
died,  and  B.  purchased  the  estate  at  a  lower  price  from  his  heir 
and  devisee,  and  mortgaged  to  D,  The  same  solicitors  were  con- 
cerned for  B.,  from  the  commencement  of  the  treaty  until  the  final 
purchase,  and  for  D.  in  the  business  of  the  mortgage.  Held,  B. 
and  D.  had  constructive  notice  of  the  agreement  with  C,  and  the 
estate  in  their  hands  was  subject  to  the  lien  of  C,  for  the  amount 
agreed  to  be  secured  by  the  proposed  mortgage.^ 

11.  As  notice,  in  order  to  affect  a  purchaser  himself,  should  be 
confined  to  the  same  transaction  ;^  a  fortiori  notice  to  an  agent  or 
counsel,  who  was  employed  in  the  thing  by  another  person,  or  in 
another  business,  and  at  another  time,  is  no  notice  to  his  client, 
who  employs  him  afterwards.'^  Thus  where,  by  a  transaction  for- 
eign to  the  business  in  hand,  a  counsel  or  attorney,  employed  to 
look  over  a  title,  has  notice,  that  shall  not  affect  the  purchaser.^ 
So,  though  the  agent  acted  as  attorney  for  the  vendor  and  vendee.^ 
Otherwise,  where  one  transaction  is  closely  followed  by,  and  con- 
nected with,  another  ^  or  where  it  is  clear  that  a  previous  transac- 
tion was  present  to  the  mind  of  a  solicitor,  when  engaged  in  the 
subsequent  one.^  So  where  the  former  transaction  is  so  recent, 
or  so  closely  connected  with  the  latter,  that  it  must  be  presumed 
that  the  agent  remembered  it.^(a) 

12.  To  constitute  a  binding  notice,  it  must  be  given  by  one 
interested  in  the  property,  and  in  tlie  course  of  the  treaty  for  the 
purchase.  (5)  Vague  reports  from  persons  not  interested  in  the 
property  will  not  affect  the  purchaser's  conscience,  nor  will  he  be 

1  Fuller  V.  Bennett,  2  Hare,  394.  Dodd,  2  Atk.  275 ;  Ashley  v.  Baillie,  2 

2  Warrick  v.  Warrick,  3  Atk.  290.  Ves.  368. 

3  Worsley  v.  Scarborough,  3  Atk.  392.  5   Mountford    v.    Scott,    3    Mad.    34  ; 

4  Lovvther    v.    Carlton,    2    Atk.    241  ;  Turn.  &  Russ.  274. 

Preston   v.   Tubbin,   1   Vern.  286;    Fitz-  •'  Hargreaves  v.  Rothwell,  1  Kee.  154. 

gerald    v.    Fauconberge,    Fitzgib.    297  ;  '^  Majoribanks  v.  Hovenden,  6  Ir.  Eq. 

Warrick  v.  Warrick,  3  Atk.  291  ;   Steed  Rep.  238 ;   Lenehan  v.  McCabe,  2  Ibid. 

V.    Whitaker,    Barnard,    220 ;    Hine    v.  342. 

[a]  In  a  late  case  the  following  dis-  board  as   to    this    particular    mortgage, 

tinctions  are  recognized  :    Notice  is   not  Dunlap  v.  Wilson,  32  111.  517. 
implied  from  the  fact,  tliat  the  same  per-  {b)  It  is  held,  that  a  notice  in  the  name 

son  is  attorney  of  mortgagee   and   pur-  of  nohody  is  insufficient.     Rogers  v.  Hos- 

chaser;  otherwise,  where  he  is  employed  kins,  14  Geo.  166.     So  it  is  said,  flying 

in     this     particular    transaction,    as    by  reports  are  many  times  fables,  and  not 

writing  the  mortgage.     So  notice  is  not  truth;  and,  if  admitted  for  sufficient  no- 

inferred  from  the  fact,  that  an  attorney  is  tice,  the  inheritance  of  every  man  might 

a  director  of  the  bank  which  receives  the  e.isily  be  slandered.     Wildgoose  v.  Wey- 

mortgage ;  otherwise,  if  he  acts  on  the  land,  Goulds.  147,  j)!.  67.    See  p.  408. 


CHAP.    XXVI.]  NOTICE.  415 

bound  by  notice  in  a  previous  transaction  wliicli  he  may  have 
forgotten.^  Thus  one  person  came  to  another,  who  was  aI»out  to 
purcliase  a  house,  and  told  him  to  take  heed  how  he  l)ought  it, 
for  the  vendor  had  nothing  in  it,  but  upon  trust  for  A.  ;  and 
another  person  came  to  him,  and  told  him  it  was  not  so,  for  the 
vendor  was  seised  of  the  land  absolutely.  Held,  although  the  first 
information  was  correct,  it  was  not  legal  notice.^  So  land  given 
to  charitable  uses  was  intended  to  be  sold  by  Act  of  Parliament ; 
and,  when  the  bill  was  read  in  Parliament,  it  was  declared  that 
the  land  was  thus  chargeable,  and  an  offer  made  otherwise  to 
assure  the  use.  The  bill  not  passing,  the  land  was  afterwards 
sold  to  a  member  who  took  part  in  the  debate.  Held,  not  legal 
notice.^ 

13.  Questions  of  notice  often  occur  in  reference  to  the  rights  of 
landlord  and  tenant,  and  the  purchase  of  leasehold  interests. 

14.  Possession  of  a  tenant  is  constructive  notice  of  the  landlord's 
title.^  So  general  notice  to  a  purchaser,  that  there  are  leases,  is 
notice  of  all  their  contents.  Thus  a  purchaser,  being  told  part  of 
the  estate  was  in  possession  of  a  tenant,  was  held  bound  by  the 
lease,^  So  the  possession  of  a  tenant,  even  of  part  of  the  estate, 
is  notice  to  a  purchaser  of  the  actual  interest  he  may  have,  either 
as  tenant,  or  further,  by  an  agreement  to  purchase.*^  So,  in  case 
of  a  bill  for  specific  performance,  a  tenant,  being  about  to  marry, 
requested  his  landlord  to  substitute  as  cestui  que  vie  in  his  lease, 
in  place  of  an  old  life,  the  name  of  the  plaintiff,  his  intended  wife  ; 
which  the  landlord,  by  letter,  promised  to  do ;  and,  upon  the  faith 
of  such  promise,  the  marriage  was  had,  and  the  premises  settled 
upon  the  wife.  The  landlord  being  dead,  the  wife  brings  this  bill 
against  the  defendant,  a  purchaser  from  the  landlord ;  who  was 
deemed  under  the  circumstances  to  have  had  notice  of  the  agree- 
ment. Decree  for  the  plaintiff.''  So,  a  tenant  for  life  having 
granted  leases  for  lives  under  a  power,  and  bound  himself  upon 
the  dropping  of  a  life  to  grant  a  new  lease,  with  the  same  pro- 
vision for  renewal  on  the  death  of  any  person  to  be  named  in  any 
future  lease,  and  afterwards  joined  in  a  sale ;  held,  though  the 
power  was  exceeded,  yet,  if  a  life  drops  in  the  life  of  the  lessor, 

1  2  Sugd.  537-8.  5  Taylor  v.  Stibbert,  2  Ves.  437. 

2  Wiklgoose  v.  Weyland,  Goulds,  147,  ^  Daniels  v.  Davison,  16  Ves.  249  ; 
pi.  67  ;  Cornwallis's  case,  Toth.  254.  Powell  v.  Dillon,  2  Ball  &  B.  41l>. 

3  2  Sugd.  538.  1  Croftoii  v.  Ormsby,  2  Sclio.  &  Lef. 

4  Dickey  v.  Lyon,  19  Iowa,  544.  583. 


416  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 

the  purchaser,  having  notice,  must  specifically  perform,  by  granting 
a  new  lease  with  the  same  provision. ^  So  the  lord  of  a  West- 
country  manor  (his  tenants  refusing  to  renew)  makes  a  lease  of 
the  premises  to  his  daughter  for  ninety-nine  years,  and  afterwards 
sells  the  manor  to  one  who  has  notice  of  the  lease,  but  has  security 
that  the  daughter,  when  at  age,  should  surrender.  The  daughter 
was  decreed  to  have  the  benefit  of  the  lease.^  So  A.  made  an 
equitable  mortgage  to  B.,  and  afterwards  agreed  to  lease  to  C, 
who  had  notice  of  the  prior  charge.  A.  became  bankrupt  before 
the  lease  was  executed,  and  on  the  petition  of  B.  an  order  in  bank- 
ruptcy was  made,  under  which  the  premises  were  sold  to  B.,  and 
he  retained  the  amount  of  his  mortgage  out  of  the  purchase-money. 
Held,  on  a  bill  filed  by  C.  for  specific  performance  of  the  agree- 
ment, that  B.,  having  become  the  purchaser,  and  thereby  united 
his  equitable  mortgage  with  the  equity  of  redemption,  was  bound 
to  perform  the  agreement.^ 

15.  An  agent  may  take  a  lease  from  his  principal,  if  prepared 
to  prove  that  full  information  has  been  imparted  to  the  latter,  and 
that  the  contract  has  been  entered  into  with  perfect  good  faith. 
And  the  same  principle  applies  to  one  who  takes  an  assignment  of 
a  lease  from  the  agent  of  the  lessor,  with  notice  of  the  agency.  If 
the  lease  cannot  be  upheld  by  the  agent,  neither  can  it  be  by  the 
purchaser.*(a) 

16.  A  purchase  pendente  lite,  though  without  actual  notice,  and 
for  valuable  consideration,  shall  be  set  aside.  "  Pendente  lite  nil 
innovetur^  Though  this  rule  of  equity  is  said  to  be  hard,  yet  it 
is  in  imitation  of  the  common  law,  where  in  a  real  action,  if  the 
defendant  alienes  pending  the  writ,  the  judgment  will  overreach 
the  alienation.  Thus  acts  of  the  Court,  as  the  commitment  of  a 
wardship,  and  in  a  cause  depending,  are  to  be  taken  notice  of  by 
every  one  at  his  peril.^     So,  pending  a  suit  in  equity  to  foreclose, 

1  Taylor  v.  Stibbert,  2  Ves.  437.  *  Molony  v.  Kernan,  2  Dru.  &  War. 

2  Jennings  v.  Selleck,  1  Vern.  467.  31. 

3  Smith  V.  Pliillips,  1  Kee.  694.  5  Herbert's  case,  3  P.  Wms.  117. 

(a)  Demise  by  a  copyholder  for  one  no  lease  at  law  further  than  from  year  to 

year,  and,  at  the  end  of  tliat  term,  from  year ;  also,  that  no  equity  arose  from  the 

year  to   year,  for   the   term   of  thirteen  circumstance,  that  the  lord  purchased  his 

years  more,  if  the  lord  will  give  license;  tenant's  interest  with  notice  of  the  demise, 

and  so  as   there   sliall   be   no  forfeiture,  and  an  express  exception  of  all  subsisting 

witli  the  usual  covenants  in  a  farm  lease,  leases,  or  agreements  for  leases.     Lufkin 

The  license   not  being  granted,  held,  it  v.  Nunn,  11  Ves.  170.     See  Doe  v.  Luf- 

was  a  condition  precedent,  and  there  was  kin,  4  E.  221. 


CHAP.    XXVI.] 


NOTICE. 


417 


in  which  a  subsequent  mortgagee  was  joined  as  defendant,  the 
plaintiff  sold  the  land  under  a  i)ower  of  sale,  and  A.  became  the 
purchaser.  This  sale  was  set  aside,  uj)on  cross  bill  of  the  sul)se- 
quent  mortgagee,  and  he  was  admitted  to  redeem.  Held,  the 
pendency  of  the  suit  for  foreclosure  was  notice  to  A.,  and  he 
took  his  title  subject  to  any  decree  therein.^  So,  an  heir-at-law 
being  as  mucli  at  lil)erty  to  invalidate  the  will,  as  the  devisees  to 
establish  it ;  a  suit  for  tliat  purpose  is  to  all  intents  a  Us  pendens.'^ 
So,  in  case  of  a  devise  of  lands  charged  witli  payment  of  del)ts  ; 
if  the  devisee  sell,  pending  a  suit  by  creditors  for  sale  and  payment 
of  debts,  such  alienation  is  void.^(a) 

17.  It  has  been  held,  that  a  final  decree  is  not  implied  notice  to 
a  purchaser,  after  the  cause  is  ended ;  but  it  is  the  pendency  of 
the  suit  that  creates  the  notice.'*  As  it  is  a  transaction  in  a  sover- 
eign court  of  justice,  it  is  supposed  all  people  are  attentive  to  what 
passes  there.^  And  where  the  defendant,  having  actual  notice  of 
a  decree  to  which  he  was  no  party,  paid  money  contrary  to  that 


1  Kurd  V.  Case,  32  111.  45. 

2  Garth  v.  Ward,  '2  Atk.  174  ;  3  Bar- 
nard, Rep.  Cha.  450. 

(a)  Whether  a  subpoena  served,  and  a 
bill  filed,  is  a  lis  pendens  against  all  per- 
sons, qu..  The  former  alone  is  not. 
Anon.  1  Vern.  318.  But,  where  a  Reg- 
ister Act  directed,  that  no  judgment 
should  affect  lands,  Init  from  the  time  of 
registry  of  such  judgment,  a  purchaser 
with  notice  of  an  unregistered  judgment 
was  still  held  to  be  bound  by  it.  Tunstall 
V.  Trappes,  3  Sim.  301. 

In  a  case  of  a  real  purcliase  pendente  lite, 
the  plaintiff'  is  to  Ije  held  to  strict  proof. 
And,  if  any  flaw  at  tlie  hearing  be  on  the 
plaintiff's  side,  the  Court  will  not  let  him 
amend ;  but,  if  the  purchase  pendente  lite 
be  fraudulent,  and  to  elude  tlie  justice  of 
the  Court,  it  ought  to  be  highly  discoun- 
tenanced. Sorrel  v.  Carpenter,  2  F. 
Wms.  482. 

A  conveyance  made  pendente  lite  is  not 
wholly  void.  Tlie  rule  merely  means 
that  the  conveyance  does  not  vary  the 
rights  of  the  parties  to  tiie  suit;  that  they 
are  not  bound  to  take  notice  of  the  title 
acquired  under  it;  but,  with  regard  to 
them,  the  title  is  to  be  taken  as  if  it  never 
existed.  2  Story  Eq.  §  908 ;  Hopkins  v. 
M'Laren,  4  Cow.  678. 

So  it  is  lield,  that  the  effect  of  the 
maxim,  "pendente  lite  nihil  innovctur,"  is 
limited  to  the  rights  and  parties  in  that 
suit.     It  does  not  absolutely  annul  a  con- 


•*  Walker  v.  Smahvood,  Ambl.  67(5. 
•*  Worsley  v.  Scarborough,  o  Atk.  3U2. 
5  Ibid. 

veyance  pendente  lite.  Therefore  a  plea 
in  bar  to  a  bill  by  a  purchaser  from  tlie 
defendant,  witli  actual  notice,  was  over- 
ruled. Metcalfe  v.  I'ulvertoft,  2  Ves.  & 
Beam.  200. 

"  The  reason  of  the  rule  is,  tluit,  if  a 
transfer  of  interest  pending  a  suit,  were 
to  be  allowed  to  affect  the  proceedings, 
there  would  be  no  end  to  litigation ;  for 
as  soon  as  a  new  i)arty  was  Ijrought  in, 
he  might  transfer  to  another,  and  render 
it  necessary  to  bring  that  other  before  the 
Court ;  so  that  a  suit  might  be  intermin- 
able. But  this  reason  has  no  application 
to  a  third  person,  whose  interest  subsisted 
before  the  suit  was  commenced,. and  who 
might  have  been  made  an  original  ])arty." 
Per  Kent,  Ch.,  Murray  v.  Lylburn,  2 
Johns.  Ch.  441. 

The  doctrine  is  said  to  rest,  not  upon 
the  presumption  of  notice,  but  upon 
l)ublic  policy.  Newman  v.  Chapman,  2 
Rand.  03. 

A  creilitor's  bill,  to  be  a  lis  i)endens, 
and  to  operate  as  a  notice  against  real 
estate,  must  be  so  definite  in  the  descrip- 
tion of  the  estate,  as  that  any  one  reading 
it  can  learn  thereliy  what  ))r()i)erty  is  the 
subject  of  the  litigation.  If  it  is  not  so, 
it  will  be  postjjoiied  to  a  junior  bill,  which 
is.     Miller  v.  Sherry,  2  Wall.  237. 


27 


418  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 

decree ;  ordered,  that  lie  should  pay  the  money  over  agaiii.^(a) 
So  land  held  by  a  husband  under  a  contract  of  purchase,  upon  a 
decree  of  divorce,  was  set  apart  as  alimony  for  the  wife,  and  after- 
wards he  assigned  the  contract,  and  a  conveyance  was  made  to  the 
assignee.  Held,  the  grantee  was  chargeable  with  notice,  and 
should  be  compelled  to  convey  the  land  to  the  wife.^ 

18.  After  a  decree,  the  bar  to  the  right  of  reviving  the  suit, 
whicli  arises  from  delay,  depends  altogether  on  the  discretion  of 
the  Court.  A  bill  of  revivor  may  be  filed,  at  any  time  within 
twenty  years  after  decree  for  an  account,  unless  there  has  been 
such  a  variation  of  tiie  rights  of  parties,  as  may  work  positive 
injury  and  injustice  to  other  persons.  Parties  claiming  under  a 
marriage  settlement,  subsequent  to  sach  decree,  are  affected  with 
notice,  as  purchasers  pendente  lite,  a  decree  for  an  account  being 
only  a  continuance  of  the  litigation.^ 

19.  A  writ  of  restitution  will  not  be  granted,  to  put  into  pos- 
session one  not  a  party  to  the  cause,  who  had  been  turned  out  by 
an  injunction,  though  he  had  a  legal  title  ;  he  having  obtained 
possession  iinder  a  grant  from  the  defendant  pending  the  suit.^ 

20.  A  devisee  obtains  a  decree  to  hold  and  enjoy  against  the 
heir,  who  it  was  supposed  had  suppressed  the  will.  Pending  this 
suit,  a  third  person  gets  an  assignment  of  a  mortgage  made  by  the 
testator,  and  then  purchases  the  equity  of  redemption  of  the  heir, 
with  notice  of  the  will.  The  Court  would  not  admit  the  purchaser 
to  dispute  the  decree,  nor  to  try  at  law,  whether  the  will  was  not 
cancelled  by  the  testator.^ 

21.  A  purchaser  2J<^ndente  lite,  on  filing  a  supplemental  bill, 
is  liable  to  all  the  costs  from  the  beginning  to  the  end  of  the 
suit.6 

22.  In  a  creditor's  suit,  the  debts  and  costs  were  paid  by  the 
sale  of  one  of  two  devised  estates,  and  the  Court  directed  the 
Master  to  settle  the  proportion  which  was  to  be  borne  by  the  other. 
The  devisee  of  the  former  was  entitled  for  life  only  ;  and,  he  being 
an  ignorant  person  and  a  day-laborer,  no  proceedings  were  had 

1  Harvey  v.  Mountas;ue,  1  Vern.  57,         *  Gaskell  v.  Durdin,  2  Ball  &  Beat. 

122.     See  Bluer.  Blue,  38  111.  9.  167. 

'^  Blue  V.  Blue,  38  111.  9.  5  Finch  v.  Newnham,  2  Vern.  216. 

3  Higgins  V.  Shaw,  2  Dru.  &  War.  356.  «  Anon.  1  Atk.  89. 

(«)  In  case  of  a  void  decree,  and  a  purchase  under  it,  notice  is  implied.  Morris 
V.  Hogle,  37  111.  150. 


CHAP.    XXVI.]  NOTICE.  419 

under  this  direction  for  twent3'-six  years,  at  the  end  of  which  time 
the  other  estate  was  sold.  The  year  following,  the  tenant  for  life 
died,  and  his  son,  the  remainder-man,  filed  a  bill,  to  charge  the 
purchaser  of  the  other  estate  with  the  j)roportion  which  it  onght 
to  have  contributed  towards  the  debts  and  costs.  Held,  there  was 
no  such  Us  pendens  at  the  time  of  purchase,  as  amounted  to  equi- 
table notice  of  the  charge. ^ 

23.  A  joint-stock  company,  established  by  Act  of  Parliament, 
vesting  in  them  all  property  then  belonging  to  them,  and  author- 
izing them  to  bring  actions  in  the  name  of  their  treasurer  for  the 
time  being,  having  purcliased  an  estate,  pending  a  suit  against 
the  vendors,  to  compel  the  specific  performance  of  an  agreement 
to  grant  a  lease  of  part ;  on  a  bill  by  the  vendee  against  the  treas- 
urer and  directors,  the  plaintiffs  were  declared  entitled  to  a  lease, 
and  the  treasurer  was  enjoined  from  disturbing  their  possession, 
though  the  rest  of  the  proprietors,  being  very  numerous,  were  not 
parties ;  but  no  decree  could  be  made  for  the  execution  of  a  leasc.^ 

24.  A  decree  was  made  against  A.  B.,  setting  aside,  as  fraudu- 
lent, a  purchase  by  an  agent  from  his  principal ;  and  a  reconvey- 
ance, and  the  usual  accounts  of  rents  and  purchase-money,  were 
directed,  in  which  an  allowance  was  to  be  made  for  substantial 
repairs  and  lasting  improvements.  A.  B.  sold  and  conveyed  part 
of  the  property,  pendente  lite,  and  died  before  the  accounts  were 
completed.  A  supplemental  bill  was  filed  against  the  purchasers, 
and  the  heir  and  personal  representatives  of  A.  B. ;  charging  that 
the  purchasers,  in  case  of  eviction,  claimed  compensation  out  of 
the  estate  of  A.  B.,  the  conyeyances,  pendente  lite,  being  set  aside. 
Held,  the  purchasers  were  entitled  in  this  suit,  as  against  their 
co-defendants,  the  personal  representatives  of  A.  B.,  to  an  order 
for  the  repayment  of  their  purchase-money ;  and,  as  against  tlie 
plaintiff,  to  an  allowance  for  substantial  repairs  and  lasting  im- 
provements, but  to  no  greater  relief.  Held,  also,  that  the  heir 
and  personal  representatives  were  proper  parties. ^ 

25.  The  rule  in  question  has  been  held  inapplicable,  wliere  a 
party  has  articled  to  purchase  the  estate,  taken  possession,  and 
made  improvements,  before  the  commencement  of  a  suit  against  the 
vendor,  although  the  price  be  paid  and  the  deed  executed  pending 


1  Kinsman  v.  Kinsman,  1  Russ.  &  Myl.  2  Meux  v.  Maltby,  2  Swanst.  181. 

617.  3  Trevelyan  v.  White,  1  Beav.  588. 


420 


LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXVI. 


such  suit ;  tliis  being  a  mere  fulfilment  of  a  prior  contract.^  So 
one  holding  a  deed  at  the  time  of  suit  commenced  may  effectually 
record  it  afterwards. -(a) 


1  Parks   V.  Jackson,   11   Wend.   442; 
ace.  Trimble  v.  Boothby,  14  Ohio,  109. 


2  Irvin  V.  Smith,  17  Ohio,  226. 


(a)  Witli  regard  to  the  allerjations  re- 
quired in  case  of  notice  to  a  purchaser  ; 
a  defendant,  pleading  a  purchase  for  valu- 
able consideration  without  notice,  must 
aver,  not  that  he,  but  that  the  vendor,  was 
seised  as  owner  or  pretended  owner,  and 
was  in  possession  ;  which  would  be  satis- 
fied   by   the    possession    of   his    tenant. 


Daniels  v.  Davison,  16  Ves.  249;  Wall- 
wyn  V.  Lee,  9  Ves.  24.  Where  the  bill 
charges  particular  and  special  instances 
of  notice  of  the  plaintiff's  title  on  the 
defendant,  his  denial  of  notice  generally 
is  not  sufScient.  Eadford  v.  Wilson,  3 
Atk.  315. 


CHAP.    XXVII.]  REMEDIES,    ETC. —  EQUITY.  421 


CHAPTER    XXVII. 

REMEDIES  OF  VENDORS  AND  PURCHASERS.  —  LAW  AND  EQUITY.  — 
GENERAL  JURISDICTION  OP  COURTS  OF  EQUITY  J  COMPENSATION; 
RESCINDING  ;     LIEN,    ETC. 

1.  Having  completed  our  view  of  the  rights  and  UahiUties  of  the 
respective  parties  to  contracts  for  the  sale  and  purchase  of  real 
estate,  we  proceed  to  the  remaining  topic,  of  the  remedies  by  which 
those  rights  may  be  asserted,  and  those  liabilities  enforced.  It 
being  a  universal  proposition,  that,  wherever  there  is  a  legal  right, 
there  is  also  a  legal  remedy  ;  much  that  falls  with  strict  propriety 
under  the  present  division  has  been  incidentally  stated  or  alluded 
to  in  the  preceding  chapters.  But  our  plan  requires  that  this 
whole  branch  of  the  general  sulyect  should  now  be  fully  illustrated. 

2.  From  the  whole  course  of  this  work,  it  may  have  been  inferred, 
that  the  sale  of  real  property  is  a  prolific  subject  of  questions  and 
cases  in  Courts  of  Equity ; (a)  very  many  of  the  cases  heretofore 
cited  having  been  settled  in  those  courts.  And  the  statement  may 
be  safely  hazarded,  that  no  single  subject  in  the  law  gives  more 
frequent  occasion  for  the  exercise  of  chancery  jurisdiction,  in  the 
various  forms  of  injunction,  rescission,  compensation,  and  more 
especially  sjyecific  jjerforinajice,  than  executory  contracts  relating 
to  real  property.  Such  subjects  are  said  to  be  within  the  settled 
aiid  common  jurisdifction  of  the  Court,  and  if  the  jurisdiction 
attaches,  the  Court  \vill  go  on  to  do  complete  justice ;  although  in 
its  progress  it  may  decree  on  a  matter  which  was  cognizable  at 
law.^     Thus  it  is  held,  that  chancery  has  unquestionable  jurisdic- 

1  Cathcart  v.  Robinson,  5  Pet.  264,  278. 

(n)  A  plaintiff,  suing  at  law  and   in  chancellor  decidins:  another.    Bradford  v. 

equitj'  at  the  same  time,  and  for  the  same  Williams,  2  Md.  Cli.  1. 

matter,  will  be  compelled  to  elect  in  which  A    Court   of  Equity,    in   settling   the 

court  he  will  proceed.     The  reason  and  riglits  of  parties,  will  not  look  Ijoyond  the 

object  of  this  rule  is,  to  relieve  a  defend-  circumstances  of  the  transaction  in  respect 

ant  from  the  "double  vexation"  of  de-  to  whicli  relief  is  asked  by  one  ])arty,  and 

fending  himself  in  two  courts  against  the  take  into  consideration  other  and  different 

same  demand,  and  to  avoid  the  clashing  transactions,  set  up  by  tiie  other  party,  as 

of  jurisdiction,  wliich  would  result  from  presenting  equities  on  his  side.     Tripp  v. 

a  jury  finding  a  verdict  one  way,  and  the  Cook,  20  Wend.  143. 


422 


LAW    OF   VENDORS    AND    PURCHASERS.       [CHAP.    XXVII. 


tion  to  decree  specific  performance  of  a  purchase  of  real  estate, 
and  compel  the  vendee  to  pay  the  purchase-money,  although  the 
complainant  has  a  remedy  at  law.^  So,  where  either  party  has 
performed  a  valuable  part  of  his  agreement,  and  is  in  no  default 
for  performance  of  the  residue,  he  is  entitled  in  equity  to  a  specific 
execution  of  the  other  part  of  the  contract ;  more  especially  where 
it  is  impossible  to  place  him  in  statu  quo?  And  it  is,  in  general, 
no  objection  that  the  vendor's  remedy  is  gone  at  law,  by  reason  of 
a  mortgage  on  the  estate,  &c.,  so  that  he  could  convey  a  good  title 
at  the  day  fixed  upon  by  the  contract.^ 

3.  But,  on  the  other  hand,  equity  will  not  enforce  a  purchase, 
where  the  vendor  cannot  recover  at  law,  unless  he  shows  a  suffi- 
cient excuse  for  his  failure,  or  that  his  forfeiture  at  law  had  been 
waived  by  the  vendee.^  So,  when  assumpsit  will  not  lie  on  a 
breach  of  promise,  equity  will  not  decree  specifically.^(a) 


1  Brown  v.  HafF,  5  Paige,  235. 

2  Hays  V.  Hall,  4  Port.  Eq.  374. 

3  Seymour  v.  Delaneey,  3  Cow.  445. 


i  Tevis  V.  Eichardson,  7  Men.  656. 
5  Hickman  v.  Grimes,  1  A.  K.  Marsh. 
87 ;  Smith  v.  Carney,  1  I.itt.  295. 


(«)  The  respective  powers  of,  and 
remedies  in,  law  and  equity,  in  case  of 
executed  coiiveijcutces,  with  the  covenants  of 
title  usually  contained  therein,  have  been 
thus  stated :  — 

Chancery  does  not  interfere,  by  decree- 
ing specific  or  further  performance,  with 
executed  ar/reements.  Thus  the  plaintiffs, 
supposing  they  were  seised,  sold  and  con- 
veyed lands,  with  covenants  of  seisin  and 
warranty,  to  which  they  liad  no  title.  Six 
years  afterwards,  on  being  sued  by  the 
grantee,  the  defendant,  on  tlie  covenant 
of  seisin,  they  purchased  the  lands,  and 
tendered  a  new  conveyance,  but  he  refused 
it.  Held,  that  the  Court  had  no  power  to 
compel  him  to  receive  the  deed,  or  to  in- 
terfere with  his  action  on  the  covenants. 
Tucker  v.  Clarke,  2  Sandf  Ch.  96. 

When  a  purchaser  is  evicted  by  a  title 
covered  by  his  covenants  of  warranty,  this 
eviction  cannot  be  called  a  failure  of  con- 
sideration, nor  is  it  available  as  a  defence 
at  law,  to  an  action  for  the  price ;  because 
a  Court  of  Law  cannot  do  coni[)lete  justice 
between  the  parties,  by  placing  them  in 
statu  quo.  So,  where  the  sale  has  been 
executed  by  acceptance  of  a  conveyance, 
fraud  is  no  defence  to  an  action  at  law 
for  tiie  price.  But,  when  a  purchaser  with 
warranty  is  evicted  by  a  title  to  which  his 
covenants  extend,  and  the  vendor  is  insol- 
vent, equity  will  restrain  him  from  recov- 
ering the  purchase-money,  to  the  extent 
for  which  he  is  liable  on  his  covenants. 


So  fraud  committed  by  the  vendor  by 
concealment  of  an  incumbrance  created 
by  himself,  whereby  the  purchaser  is  af- 
terwards evicted,  is  relievable  in  equity, 
by  restraining  the  collection  of  the  pur- 
chase-money to  the  extent  of  the  injury, 
or  by  an  entire  rescission  of  the  contract, 
although  the  incumbrance  is  of  record, 
and  the  conveyance  with  warranty  against 
all  incumbrances.  In  all  cases  of  pur- 
chase, there  is  a  trust  and  confidence 
reposed  by  the  purchaser  in  the  vendor, 
that  the  estate  is  not  impaired  in  value  or 
incumbered  by  any  act  done  by  him  ;  and, 
by  ofiering  to  sell,  he  virtually  represents 
it  as  not  incumbered  by  himself,  or,  if  it 
is,  that  he  will  free  it  before  the  sale  is 
executed.  And  the  cases  in  which  mere 
concealment  of  an  incumbrance  has  been 
held  no  ground  to  rescind  the  contract,  it 
being  removed  before  the  hearing,  are  said 
to  rest  upon  the  principle  that  no  injury 
has  resulted  to  the  purchaser.  When  an 
incumbrance  has  been  concealed,  the  pur- 
chaser may  require  a  prompt  removal  of 
it.  If  not  effected,  he  is  entitled  to  a  re- 
scission, and  may  abandon  the  possession, 
unless  he  chooses  to  retain  it  as  a  trust 
fund,  to  reimburse  himself  for  money  paid. 
The  ettect  of  retaining  possession  until  a 
decree  for  rescission,  will  be  only  to  charge 
the  purchaser  with  interest  on  the  pur- 
chase-money, if  the  possession  is  of  any 
value.  A  covenant  covering  the  eviction 
will  not  prevent  the  purchaser  from  re- 


CHAP.    XXVII.]  REMEDIES,    ETC.  —  EQUITY.  423 

4.  The  doctrine  of  compensation  in  Courts  of  Equity  has  ah'eady 
been  referred  to  under  several  titles. (a)  In  more  immediate  con- 
nection with  tlie  present  topic  of  remedies^  it  may  again  be  appro- 
priately introduced. 

5.  The  rule  in  equity  is,  tliat  a  vendor  cannot  conscientiously 
coerce  the  payment  of  the  wliule  purcliasc-money,  when  there  was 
fraud  in  the  sale,  in  selling  what  did  not  belong  to  the  vendor,  and 
leave  the  vendee  to  the  uncertain  damages  of  an  action  at  law  ;  but 
the  vendee  has  the  right  of  withholding  so  much  of  the  purchase- 
money  as  will  reimburse  him  for  his  loss.^  But  chancery  does  not 
entertain  jurisdiction  of  a  suit,  where  the  sole  object  is  to  obtain 
compensation  in  damages  for  breach  of  contract,  unless  the  con- 
tract is  of  equitable  cognizance  merely ;  if  the  defendant  sea- 
sonably object  by  demurrer  or  answer.^  The  jurisdiction  of  equity 
for  this  purpose  is  held  to  be  merely  incidental  or  ancillary  to  a 
claim  for  specific  performance  ;  even  in  case  of  fraud.^  Upon  a 
claim  for  damages  only,  a  Court  of  Law  is  said  to  be  the  only 
proper  forum.  So  it  is  held,  that  equity  will  give  damages  in  lieu 
of  a  specific  performance,  only  where  it  has  obtained  jurisdiction 
of  the  cause  on  other  grounds.  Thus,  where  the  defendant  has 
power  to  fulfil  his  contract  when  the  bill  is  filed,  but  from  any 
cause  becomes  unable  to  do  so  during  the  pendency  of  the  suit; 
or  where,  at  the  time  of  making  tlie  decree,  -he  can  perform  it  in 
part  only ;  the  Court,  having  had  jurisdiction  at  first,  or  having 
the  power  to  afford  partial  relief  by  decreeing  a  specific  performance 
as  far  as  the  defendant's  ability  extends,  can  give  the  plaintiff 
compensation  by  way  of  damages.  It  is  said,  this  is  as  far  as  the 
principle  ought  to  be  carricd,'*(i)     So  where  it  would  be  difficult 

.  1  Ransom  v.  Shuler,  8  Ired.  Eq.  304.  3  Newham  v.  May,  13  Price,  749. 

2  Morss  V.  Elmendorf,  11  Paige,  277.  4  Wiswall  v.  McGown,  2  Barb.  270. 

scinding  for  fraud.    Nor  the  circumstance,  out  a  remedy  in  equity  as  well  as  at  law, 

that  the   incumbrance   could   have   been  provided  the  contract   were   fair  and  no 

removed  by  the  payment  of  a  sum  greatly  fraud.     But,  if  fraud  is  sliown  in  making 

less  than  that  remaining  due  for  the  pur-  the  purchase  or  completing  it,  and  whether 

chase-money.     CuUum  v.  Branch  Bank,  there  be  covenants  of  title  or  not,  the  i)ur- 

4  Ala.  21.  chaser  may  come  into  equity  for  relief, 

But  it  is  said  to  be  a  well-settled  rule  or  to  obtain  indemnity  against  eviction, 

of  equity,  that  a  grantee,  to  whom  posses-  disturbance,  or  defect  of  title.     Denstoa 

sion  has  been  delivered  under  covenants  v.  JMorris,  2  Edw.  37. 

of  title  and  warranty,  can  have  no  relief  (a)  See  Chapters  16,  19,  20;   Compen- 

against  his  grantor  for  a  return  of  pur-  sation. 

chase-money  or  security  on  account  of  a  (b)  Upon  a  bill  for  specific   perform- 

deticiency  or  failure  of  title.     And  if  a  ance  of  an  agreement  in  a  lease,   that, 

grantee  in  possession  has  taken  no  cove-  at  the  expiration  of   the    term,   the    im- 

nants,  and  the  title  fails,  he  will  be  with-  provements    made    by   the    lessee    shall 


424 


LAW   OF   VENDORS   AND    PURCHASERS.       [CHAP.  XXVII. 


to  ascertain  the  amount  of  injury  resulting  from  breach  of  contract, 
equity  will  not  itself  ascertain  the  damages,  nor  direct  an  issue 
quantumi  dam nificatus.^ 

6.  Nor  can  the  complainant  entitle  himself  to  such  compensation, 
merely  by  concealing  tlie  fact,  in  his  bill,  that  the  defendant  is  not 
able  to  perform  his  contract  specifically,  where  such  fact  is  known 
to  the  complainant  at  the  time  of  filing  the  bill.2(«) 

1  Pratt  V.  Law,  9  Cranch,  456,  494. 

2  Morss  V.  Elmendorf,  11  Paige,  277  ;  Bradley  v.  Bosley,  1  Barb.  Eq.  125. 


remain  the  property  of  tlie  lessor,  on 
making  a  fair  compensation  therefor,  the 
Court  will  entertain  jurisdiction,  though 
the  bill  be  purely  for  compensation  and 
damages,  i)rovided  a  specific  performance 
may  be  decreed,  and  tlie  complainant  can 
have  adequate  relief  only  in  equit3^  The 
charge  for  improvements  is,  in  equity,  a 
lien  on  the  property.  But  the  Court  will 
not  extend  its  jurisdiction  beyond  tliis 
claim  to  a  claim  for  alleged  infringements 
of  the  rights  of  tlie  lessee  during  his  term. 
Berry  v.  Vanwinkle,  1  Green,  Ch.  269. 

(a)  It  has  been  decided  in  Connecticut, 
that,  where  an  unexecuted  contract  for  the 
purchase  of  real  estate  for  a  piddic  purpose, 
as  a  highway,  railroad,  &c.,  is  abandoned 
by  the  vendee,  and  the  vendor  retains 
possession,  his  remedy  is  not  in  equity, 
but  at  law.  Bill  in  equity  to  enforce  a 
contract,  by  which  the  city  of  New  Haven 
agreed  to  purchase  of  the  plaintiff  certain 
lands,  and  as  mucli  of  the  water  of  Mill 
Kiver  as  should  be  required  to  supply  the 
city  with  pure  water,  for  the  consideration 
of  $50,000,  and  of  a  covenant  to  construct 
a  costly  dam  and  a  canal  to  convey  tor 
the  plaintitTs  use  the  surplus  water  of  the 
river.  The  plaintiff  retained  possession 
of  the  property.  Held,  the  suit  could  not 
be  maintained,  there  being  a  complete 
remedy  at  law.  Ellsworth,  J.,  says,  "  Our 
statute,  as  well  as  common  law,  forbids  a 
party,  that  can  obtain  complete  redress  at 
law,  to  seek  redress  by  specific  execution. 
True  it  is,  that,  as  a  general  rule,  where 
the  purchaser  of  real  estate  can  come  into 
a  Court  of  Equity,  to  obtain  a  deed  of  it, 
the  vendor  can  come  there  to  get  his 
money,  which  was  agreed  to  be  paid,  but 
the  rule  is  not  universally  true,  and  it 
should  not  be  applied,  we  think,  where 
it  will  do  unnecessary  mischief  to  one  of 
the  parties.  This  is  a  case  of  that  char- 
acter. The  plaintiff  not  onlj'  asks  to  re- 
cover his  money,  but  he  seeks  to  compel 
the  city  to  construct,  at  a  great  expense, 
their  water-works,  with  a  dam  thirty-three 
feet  high,  for  an  immense  pond,  or  reser- 
voir of  water,  with  a  canal,  for  surplus 


water  for  the  plaintiff's  works  ;  or  if  the 
plaintiff  will  be  satisfied,  as  he  may  be,  to 
take  a  decree  only  for  the  fifty  thousand 
dollars,  and  not  pursue  the  rest  of  his 
prayer,  then,  we  say  that  the  remedy  is 
unequal  and  oppressive,  and  will  not  leave 
the  parties  where  they  should  be  left,  and 
where  they  will  be  left,  after  a  recovery 
of  damages,  at  law.  Is  it  not  more  equal 
and  just,  that  the  plaintiff  should  recover 
his  damages,  whatever  they  may  be,  and 
retain  his  jiroperty,  as  it  is,  than  to  force 
the  city  to  pay  fifty  thousand  dollars,  and 
go  on  with  the  water-works,  whether  they 
will  use  them  or  not;  or,  if  the  works  are 
not  to  be  constructed,  to  pay  Mr.  Whitney 
the  fifty  thousand  dollars,  and  leave  him, 
as  they  necessarily  must  do,  in  that  case, 
in  the  undiminished  enjoyment  of  the 
whole  of  this  same  property  ?  The  truth 
is,  the  city  get  nothing  at  all  for  the  fifty 
thousand  dollars,  nor  is  the  plaintiff  to  part 
with  any  tiling  for  it.  In  Webb  v.  The 
London  &  Portsmouth  I'ailway  Compa- 
ny, 9  Eng.  Law  &  Eq.  249,  on  appeal,  the 
defendants  had  entered  into  an  agreement 
to  purchase  certain  lands,  not  exceeding 
eight  acres,  for  a  proposed  railroad,  and 
to  pay  .£4,500  for  them,  but  which  was  not 
taken,  though  the  defendants  entered  to 
make  a  survey  and  estimate,  and  cut  one 
tree,  and  the  plaintiff  was  not  otherwise 
disturbed  in  his  possession  and  enjojnnent ; 
the  Court  held,  tliat  the  plaintiff' was  not 
entitled  to  a  specific  performance ;  their 
language  is,  'It  is  the  plain  doctrine  of 
the  Court,  that  it  is  not  upon  every  con- 
tract that  the  Court  will  interfere  to  decree 
specific  performance.  It  does  so,  to  give 
more  complete  justice  to  a  party,  who 
seeks  the  aid  of  this  Court,  where  a  con- 
tract has  been  entered  into  to  purchase  aa 
estate.  It  may  often  happen  that  the  mere 
legal  remedy  of  recovering  damages  for 
the  non-performance  of  the  contract  would 
afford  inadequate  relief,  and,  from  the 
earliest  time,  it  has  been  the  doctrine  of 
this  Court  to  interfere  to  make  the  party 
do  what  he  has  engaged  to  do ;  namely, 
convey  the  land  he  has  agreed  to  sell.  — 


CHAP.    XXVII.] 


REMEDIES,    ETC. EQUITY. 


425 


7.  Where  the  vendor  never  had  title,  or  has  conveyed  it  subse- 
quently to  the  sale,  tlie  vendee  having  notice  cannot  maintain  a 
bill  in  equity  for  mere  compensation  in  damages,  but  must  resort 
to  his  remedy  at  law.  But  where  the  defendant  deprives  himself 
of  the  power  to  perform  his  contract  specifically,  pending  a  suit  to 
compel  such  performance,  the  Court  will  retain  the  suit,  and  award 
damages. ^(a) 

8.  Where  the  owner  of  land,  bound  by  a  judgment  against  a 
previous  owner,  covenants  to  give  him  a  quitclaim  deed  of  an 
undivided  share  thereof,  at  a  certain  day,  and  after  the  day  con- 

1  Morss  V.  Elmendorf,  11  Paige,  277  ;  Woodcock  v.  Bennett,  1  Cow.  725. 


But  even  in  the  case  of  a  suit  by  a  pur- 
chaser, if  there  be  circumstances,  ren- 
dering it  unjust  tliat  the  Court  sliould 
interfere,  the  Court  will  not  interfere  in 
his  lavor ;  and  I  should  say,  much  more 
readily  will  the  Court  listen  to  an  ob- 
jection, that  is  made  against  a  vendor 
seeking  a  specific  performance  ;  because 
of  necessity  the  vendor  can  get  complete 
redress  at  law.  —  But  here  it  is  admitted 
that  what  the  corftract  amounts  to  is  really 
this :  a  contract  to  pay  .£4.500,  to  select 
eight  acres  of  the  plaintiff's  land  and  take 
it  from  him,  and  for  sucli  land,  and  conse- 
quential damage  to  pay  the  £4,500.  — 
The  amount  of  damage.s  to  be  calculated 
will  then,  as  I  conceive,  be  a  calculation 
made  on  the  agreement,  as  to  what,  taking 
all  the  circumstances  into  consideration, 
will  do  justice;  whereas,  the  relief  that 
would  be  afibrded  in  this  Court  would  be 
positive  injustice.  It  would  be  giving  to 
this  gentleman  £4,500  as  the  purchase- 
money  for  that  which  they  had  not  taken, 
and  which  I  believe  they  never  can  take.' 
The  same  is  decided  in  Stuart  v.  The  L. 
N.  AV.  R.R.  Co.,  11  Eng.  L.  &  Eq.  112. 
Lord  Cranworth  says,  '  The  ground  on 
which  we  proceeded  in  Webb,  &c.,  was 
this :  that,  whether  it  was  a  contract  or 
not,  the  circumstances  of  the  case  made  it 
such,  that  it  was  not  fit  for  this  Court  to 
interfere  by  way  of  specific  performance, 
because  these  two  circumstances  con- 
spired :  first,  that  complete  relief  might 
be  obtained  at  law,  if  the  parties  were  en- 
titled to  any  relief;  and,  secondly,  the 
principle  of  mutuality  wholly  failed,  for 
it  was  impossible  for  the  company  to  hold 
the  land  for  their  benefit,  in  consideration 
of  the  money  they  were  to  pay.'  So  in 
Gooday  v.  The  C.  &  S.  V.  U.K.  Co.  15 
Eng.  L.  &  Eq.  5'JG,  —  where  the  compa- 
ny had  not  taken  possession  of  the  land, 
and  had  abandoned  for  ever  the  project 
contemplated,  —  the  Master  of  the  Kolls 


saj's,  'Had  there  existed  any  such  con- 
tract, then  it  has  been  settled,  as  a  rule  of 
law,  by  recent  cases,  that  assuming  a  con- 
tract to  have  existed  between  an  individ- 
ual and  a  railway  company,  and  if  the 
undertaking  had  been  abandoned,  the 
Court  will  nevertheless,  in  the  exercise 
of  its  discretion,  send  the  case  to  law.'  " 
Whitney  v.  New  Haven,  26  Conn.  G24, 
631. 

(a)  A  contract  was  so  drawn,  as  legally 
to  entitle  a  vendee  to  a  large  quantity  of 
surplus  land,  not  known  to  the  i>arties  ; 
but  the  vendee  had  omitted  to  make  his 
payments,  so  that  he  had  not  a  strict  legal 
right  to  a  performance.  Upon  a  bill  brought 
by  the  vendee  for  specific  performance ; 
held,  performance  should  be  decreed,  only 
on  his  making  additional  compensation, 
and  after  deducting  so  much  of  the  surplus 
land  as  had  been  sold  to  another.  King 
V.  Hamilton,  4  Pet.  311. 

A.  agreed  to  sell  an  estate  tithe-free  to 

B.  Afterwards,  C,  the  vicar  of  L.  (in 
which  parish  part  of  the  estate  was  situ- 
ate), filed  a  bill  for  tithes  ag.ainst  the 
occupiers  of  another  part  of  the  estate 
as  also  being  situate  in  L.  A.  agreed 
that  part  of  the  purchase-nione}'  sliould 
be  set  apart,  as  an  indenmity  to  B. 
against  this  claim,  which  was  accordingly 
done,  and  B.  paid  the  remainder  of  his 
purchase-money,  and  took  a  conveyance. 

C.  died,  and  his  suit  was  dismissed  for 
want  of  prosecution  ;  but  the  indemnity 
fund  was  not  transferred  to  A.  One  of 
C.'s  successors  instituted  a  fresh  suit  for 
the  tithes.  Pending  these  jiroccedings,  it 
was  discovered  that  the  lands  were  situate 
in  the  parish  of  S.,  and  tithable  to  the 
rector  of  S.,  and,  on  proof  of  those  facts, 
the  latter  suit  was  dismissed  at  the  hear- 
ing. Held,  B.  was  entitled  to  a  compen- 
sation out  of  the  fund,  for  the  tithes  of  the 
land  situate  in  S.  Crompton  v.  Melbourne, 
6  Sim.  353. 


426  LAW    OF   VENDORS    AND    PURCHASERS.       [CHAP.    XXVII. 

veys  to  another ;  on  a  bill  filed  by  the  covenantee  for  specific  exe- 
cution, chancery  ought  not  to  decree  damages  to  the  value  of  the 
land,  without  providing  that  the  covenantee  shall  first  pay  or 
secure  a  proportional  part  of  the  judgment.  In  such  case,  the 
Court  may  refer  it  to  a  Master  to  assess  the  damages.^ 

9.  A  purchaser  may  claim  compensation  in  equity  for  breach  of 
contract  to  make  a  good  title,  and  have  an  issue  to  a  jury,  without 
first  proceeding  at  law ;  if  the  vendor  has  conveyed  away  his  prcp- 
erty  in  trust,  whereby  there  might  be  difficulty  in  obtaining  sa<is- 
faction  of  a  judgment,  and  in  order  to  prevent  circuity  of  action ; 
the  vendor,  or  his  representative,  the  trustees,  and  cestuis  que  trusts, 
being  made  defendants.^(a) 

10.  In  a  bill  by  a  vendor  for  specific  performance,  with  an  allow- 
ance to  the  defendant  by  way  of  compensation  for  a  part  of  the 
estate  to  which  the  plaintiff  is  unable  to  make  a  good  title  ;  the  de- 
fendant having  taken  possession  under  the  agreement,  one  of  the 
terms  of  which  was  that  immediate  possession  should  be  given  ; 
and,  in  the  course  of  subsequent  disputes  as  to  the  title  to  this  part 
of  the  estate,  having  been  turned  out:  held,  the  vendor,  in  so 
turning  him  out,  had  abandoned  his  right  to  a  specific  perform- 
ance ;  and  the  bill  was  dismissed,  without  going  into  the  question 
of  the  materiality  of  tlie  defective  part.'^(J) 

1  Woodcock  V.  Bennett,  1  Cow.  711.  ^  KnatchbuU  v.  Grueber,  3  Mer.  124  ; 

'■2  Sims  V.  Lewis,  5  Munf.  29.  1  Madd.  170. 

(a)  Bill  in  equity  for  relief.     Tlie  de-  {b)  The   following   rules   apply  more 

fendant,  A.,  purchased  a  farm  of  the  plain-  particularly   to  executed  conveyances  than 

tiff,   for   worthless    stock   of  a   company  mere  executory  contracts,  but  still  tend 

which  he  represented  to  be  worth  $6,000.  to  illustrate   the   subject   treated  in  the 

Several  false  representations  were  made  text  :  — 

by  A.,  and  also  by  B.,  concerned  in  the  A  party  defrauded  in  the  purchase  or 

same  company,  to  induce  the  plaintiff  to  sale  of  property  may  rescind  the  contract, 

take  the  stock  in  payment.     Decreed,  that  i^lacing  tlie  parties  in  statu  quo  ;  or  affirm 

the  sale  should  be  rescinded,  the  stock  the  contract,  so  far  as  it  has  been  exe- 

and  farm  each  reconveyed,  and  a  Master  cuted,    and    claim    compensation.      But 

appointed,  to  report  the  amount  of  rents  equity  will  partially  rescind  tiie  contract, 

and  waste,  after  deducting  permanent  im-  only  where  no  possible  injustice  will  be 

provements,  which  should  be  allowed  to  thereby  done.     If  a  party  defrauded   is 

the  plaintiff.     But,  if  neither  the  land  nor  entitled  to  any  relief,  and  it  is  necessary 

the  stock  could  be  reconveyed,  the  Master  for  him  to  allege  and  establish  the  fraud 

to  report  the  damage  done  by  the  misrep-  in  order  to  obtain  such  relief,  he  may  ob- 

resentations,  and  a  decree  to  be  entered  tain  full  relief,  without  resorting  to  law ; 

against  the   defendants   for  the   amount,  although,  as  to  a  part  of  the  relief  claimed. 

And,  if  the  land  could  be  reconveyed,  and  he  had  a  perfect  remedy  at   law.     And 

not  the  stock,  the  land  to  be  reconveyed,  where,  by  the  fraud  of  the  vendee,  a  part 

and  the  value,  if  any  thing,  of  the  shares,  of  the  jmce  remains  unpaid,  although  the 

at  the  time  of  the  sale,  deducted  from  the  vendor  supposed  he  had  been  paid  in  full, 

net  income,  and  a  decree  made  for  the  there  is  no  waiver  of  his  equitable  lien, 

balance.     Warner  v.  Daniels,  1  Woodb.  &  and  he  may  come  into  equity  in  the  first 

M.  113,  114.  instance,  to  enforce  such  lien;  and,  as  an 


CHAP.   XXVII.]  REMEDIES,   ETC.  —  EQUITY.  427 

11.  AVe  have  already  had  occasion  to  consider  the  subject  of  the 
rescinding  of  sales  and  purchases  of  real  property.  (Chaps.  14, 
16,  20,  21,  and  seq.^  It  requires  only  to  be  further  stated,  in  the 
present  connection,  as  may  indeed  have  been  inferred  from  the 
cases  already  cited,  that  Courts  of  Equity  exercise  one  of  their 
peculiar  functions,  in  wholly  or  partially  rescinding  a  sale,  for 
fraud,  mistake,  or  other  cause,  which  would  render  its  enforce- 
ment and  execution  inequitable.  Thus  a  purchaser  had  stipulated 
for  a  good  title,  on  payment  of  the  purchase-money ;  but  the  title 
was  in  the  heirs  of  a  third  person,  who  were  non-residents.  The 
parties  to  a  bond,  indemnifying  the  purchaser  against  a  mortgage 
upon  the  land,  were  also  non-residents,  and  one  was  insolvent,  and 
the  other  did  not  prove  his  ability  to  respond  in  damages.  Held, 
Chancery  would  afford  relief. ^  So  the  false  representation  of  the 
vendor,  as  to  the  existence  of  a  material  fact,  constituting  an 
inducement  to  the  contract,  and  upon  which  the  vendee  did,  and 
had  a  right  to  rely,  in  concluding  the  purchase ;  entitles  the  latter 
to  rescind  the  contract  in  a  Court  of  Equity,  although  the  vendor 
may  not  have  known  that  such  representation  was  false.^  (^Siqjra, 
ch.  22.)  But  whether  without  first  abandoning  possession,  is 
doubted.^  So,  where  a  vendee,  who  has  paid  the  purchase-money, 
and,  by  the  terms  of  the  bond,  has  a  present  right  to  the  title, 
files  his  bill  to  rescind  the  contract,  and  for  an  account  of  the 
purchase-money  paid,  <fec. ;  the  general  charge,  that  the  defendant 
has  no  title  to  the  land,  that  it  is  incumbered  with  the  dower 
of  the  wife  of  a  previous  owner,  and  that  it  will  be  impossible  for 

1  Griggs  V.  Woodruff,  14  Ala.  9.  »  Ibid. 

2  Read  v.  Walker,  18  Ala.  323. 

incident  to  this  right,  equity  will  ascertain  ery  of  the   unpaid   purchase-money,   as 

the  amount.     Bradley  v.  Bosley,  1  Barb,  against  the  vendor,  to  the  extent  of  the 

Ch.  125.  value  of  this  tract.     Ibid. 

The  right  of  a  vendee  of  land,  from  a  Such  vendee  having,  after  his  eviction, 

part  of  which  he  is  evicted,  to  relief  from  and  after  the  assignment  of  his  obligation 

the   vendor,    by   being   discharged   from  for   the   purchase-money,    received   back 

payment  of  part  of  the  purchase-money,  from  the  land-office  the  entrance-money 

does  not  require  a  rescission  of  the  con-  paid  by  his  vendor  for  the  land,  by  way 

tract,  but  rests  on  the  groimd  of  a  partial  of  indemnifying  himself  to   tiiat   extent 

failure  of  consideration,  of  which  he  may  against   the   insolvency   of   the    vendor  ; 

avail  himself  in  equity,  if  not  at  law,  and  held,  he  did  not  thereljy  waive  his  defence, 

against  the  assignee  of  the  note  or  bond  as  against  the  assignee,   of  such  i)artial 

given,  as  well  as  the  payee.     Walker  v.  failure  of  consideration.     Ibid. 
Johnson,  13  Ark.  522.  Equity  will,  in  cases  of  a  very  peculiar 

When  a  vendor  sells  several  tracts  of  and  extraordinary  character  onl}',  compel 

land,  with  general  covenants  of  warranty,  a  purchaser  to  receive  a  title,  in  lieu  of 

and  afterwards  the  vendee  is  evicted  from  damages  which  he  may  have   recovered 

one  of  the  tracts,  by  a  iierson  holding  a  against  the  vendor,  for  failing  to  convey, 

paramount  title ;  lie  may  defeat  tlie  recov-  Itoyster  v.  Shacklelbrd,  5  Litt.  22'J. 


428 


LAW   OF   VENDORS   AND    PURCHASERS.       [CHAP.  XXVII. 


the  defendant  to  procure  a  title  for  many  years  to  come,  makes 
out  at  least  a  primd-facie  case  of  equitable  cognizance,  and  is 
sufficient  to  require  the  defendant  to  answer.^ 

12.  But  equity  will  not  rescind  a  contract,  where  the  vendor, 
although  unable  to  make  title,  is  perfectly  solvent,  and  has  been 
guilty  of  no  fraud,  on  the  ground  that  he  is  a  resident  of  another 
State ;  if  he  was  such  at  the  time  of  the  contract,  and  has  so  con- 
tinued ever  since. ^  So,  where  a  vendee  retains  possession,  equity 
will  not  rescind  the  contract,  unless  upon  some  special  ground ; 
such  as  the  vendor's  inability  to  make  title,  coupled  with  insol- 
vency, or  fraud  in  the  sale.^  So,  altliough  equity  may  rescind 
a  conveyance  or  a  contract  therefor,  which  has  been  procured  by 
fraud,  when  a  proper  case  for  it  is  presented ;  no  such  relief  can 
be  given,  where  no  conveyance,  or  written  or  other  legal  contract 
or  bargain  for  the  conveyance,  of  any  part  of  the  land,  by  the 
defendant  to  the  plaintiff,  is  pi-oved  to  liave  existed  at  any  time.*(a) 


1  Ibid. 

2  Parks  V.  Brooks,  16  Ala.  529. 

(a)  In  a  suit  to  set  aside  a  conveyance 
after  twenty-seven  years,  on  the  ground 
of  fraud,  consisting  in  tlie  lunacy  of  the 
vendor,  insufficient  consideration,  suppres- 
sion, and  coercion  on  the  part  of  the  pur- 
chaser, the  plaintiff  failed  in  proving  any 
of  the  alleged  grounds  of  fraud,  but 
proved  lunacy.  Held,  the  Court  would 
not  set  aside  the  conveyance.  Price  v. 
Berrington,  7  Eng.  Law  &  Eq.  254. 

A.,  supposing  that  he  had  title  to  a 
tract  of  land  of  which  B.  had  possession, 
agreed  to  sell  it  to  him,  and  executed 
a  conveyance,  with  full  covenants.  It 
afterwards  appeared,  that  A.  had  no  title 
to  the  tract,  and  that  his  deed  conveyed 
another  tract,  to  which  A.  had  title.  Upon 
discovering  the  mistake,  B.  offer.ed  to  re- 
turn the  deed,  and  to  rescind  the  contract, 
which  A.  refused.  Thereupon,  B.  sued 
at  law,  to  recover  the  purchase-money. 
Held,  he  could  not  recover,  and  that  equity 
alone  could  afford  relief.  Homer  v.  Pur- 
ser, 20  Ala.  573. 

A  bill  for  the  rescission  of  a  sale  alleg- 
ed, that  the  vendor  sold  and  conveyed  to 
two  of  the  complainants,  while  the  deed, 
which  was  made  an  exhibit  to  the  bill, 
conveyed  to  one  of  the  complainants  only. 
Held,  no  material  variance,  as  the  defend- 
ant could  not  have  been  taken  by  sur- 
prise.    Lanier  v.  Hill,  25  Ala.  554. 

A  sale  is  sometimes  rescinded  by  can- 
celling the  security  by  which  it  is  effected. 
But  it  is  held  that  equity  will  not  decree 


3  Ibid. 

*  Woodman  v.  Freeman,  25  Maine,  531. 

cancellation  of  a  bond  for  conveyance 
for  breach  of  the  conditions,  when  the 
parties  have  an  adequate  remedy  at  law. 
Bhoup  V.  Cook,  1  Cart.  135. 

A.  contracted  to  sell  to  C,  without  au- 
thority from  B.,  the  owner.  Afterwards, 
B.  made  a  quitclaim  deed  to  C,  and  gave 
it  to  A.  as  an  escrow,  with  authority  to 
deliver  the  deed  to  C,  upon  performance 
of  certain  conditions.  After  this,  A.  con- 
federated with  C,  to  defraud  B.  out  of 
his  interest;  and  gave  the  deed  to  C. 
without  the  conditions  being  fulfilled. 
Held,  equity  would  decree  the  cancella- 
tion of  the  deed,  and  also  that  C.  restore 
possession,  accounting  for  the  rents  and 
profits ;  but  that  C,  who  had  purchased 
an  adverse  title,  was  not  bound  to  sur- 
render it.  Also,  that  C.  could  not  then 
claim  under  the  deed  from  B.,  by  com- 
plying with  the  original  contract  with  A. ; 
and  that  it  was  too  late  to  ask  specific 
performance  of  the  contract,  after  having 
evaded  and  repudiated  it.  Clement  v. 
Evans,   15  111.  92. 

It  has  been  held  in  a  recent  case,  that 
Confederate  treasury  notes  were  not  an 
illegal  consideration  in  contracts  between 
citizens  of  the  Confederate  States,  unless 
the  parties  thereby  intended  to  aid  the 
rebellion.  Therefore,  the  Court  cannot 
set  aside  the  sale  of  a  house  thus  paid  for, 
of  which  the  vendee  had  taken  posses- 
sion. Phillips  V.  Hooker,  N.C. ;  Law  Keg. 
Nov.  1867,  p.  40. 


CHAP.   XXVII.]  REMEDIES,   ETC.  —  EQUITY.  429 

So  a  purchaser  who  discovers  that  a  fraud  has  been  practised  upon 
him,  or  that  the  other  party  has,  by  his  conduct,  prevented  him 
from  enjoying  the  fruits  of  his  purchase,  must,  to  entitle  himself 
to  relief  in  the  Court  of  Equity,  immediately  give  notice  to  the 
vendor  that  he  will  no  longer  be  bound  by  his  contract,  but  will 
rescind  it.^  So  where  a  vendee,  discovering  a  defect  in  his  vendor's 
title  to  part  of  the  land,  sues  at  law  on  the  contract,  and  recovers 
judgment  for,  and  collects,  the  damages  sustained,  by  reason  of  the 
defect ;  he  thereby  elects  to  treat  the  contract  as  valid,  and  cannot 
afterwards  sustain  a  bill  in  equity  to  have  it  rescinded.^  So  where 
a  vendee  seeks  to  rescind,  for  want  of  title  in  the  vendor,  he  must 
restore  to  the  vendor  all  he  received,  and  place  him  back  in  his 
original  situation.^  So  the  Court  will  not  set  aside  a  purchase  of 
a  house  and  lot,  on  the  allegation  of  an  imperfect  or  incumbered 
title,  not  clearly  shown  to  be  so,  after  a  long  possession  by  the 
purchaser,  and  a  confession  of  judgment  for  the  purchase-money. 
Such  conduct  amounts  to  a  waiver,  though  the  Court  might  give 
some  relief  ultimately,  if  the  title  turned  out  to  be  really  bad. 
The  vendor  having  enforced  the  judgment  for  his  purchase-money, 
and  bought  in  the  property  at  a  very  low  rate,  but  offering  to 
rescind  the  sale  on  payment  of  the  debt ;  the  Court  decreed 
accordingly,^ 

13.  Where  a  vendee  seeks  by  his  bill  a  rescission  of  the  contract, 
and  an  account  for  purchase-money  paid  and  improvements ;  an 
averment,  that,  in  the  event  of  a  rescission,  he  will  lose  a  consid- 
erable portion  of  the  purchase-money,  and  of  the  amount  due  for 
improvements,  if  he  is  compelled  to  abandon  all  recourse  upon  the 
vendor's  interest  in  the  land,  and  to  trust  to  his  personal  responsi- 
bility and  solvency,  shows  a  sufficient  excuse  for  the  retention  of 
possession.^ 

14.  It  has  been  seen  (chap.  1)  to  what  extent  a  purchaser  of 
lands  becomes  the  owner  of,  or  gains  a  title  to  them,  before  any 
actual  conveyance.  It  remains  to  be  stated,  in  the  present  con- 
nection, as  a  right  or  claim  recognized  only  by  Courts  of  Equity, 
that  such  purchaser,  by  payment  of  the  purchase-money,  has  been 
sometimes  held  to  acquire  a  lien  upon  the  estate,  corresponding 
with  the  lien  of  a  vendor  for  the  price,  after  an  actual  conveyance. 

1  Alexander  v.  Utley,  7  Ired.Eq.  242.  <  Roach  v.  Tlutherford,  4  Desaus.  126. 

'i  Pettus  V.  Smith,  4  Rich.  ICq.  197.  5  Read  v.  Walker,  18  Ala.  323. 

»  Brown  v.  AVitter,  10  Ohio,  142. 


430  LAW   OF  VENDORS   AND   PURCHASERS.      [CHAP.   XXVII. 

Under  such  circumstances,  the  purchase-money  is  said  to  have 
been  paid  punctually,  prematurely,  or  hy  surprise.  The  Hen  in 
question  has  been  distinctly  asserted  in  some  English  cases,  but  in 
others  doubted  or  denied,  and  can  hardly  be  regarded  as  a  settled 
rule  of  American  law.  (a)  The  high  authority  of  Sir  Thomas 
Clarke,  M.R.,  and  of  Judge  Story,  may  be  cited  in  its  favor,  and 
that  of  Mr.  Sugden  against  it.^ 

15.  The  most  frequent  and  important  exercise  of  chancery 
jurisdiction,  in  reference  to  the  sale  and  purchase  of  real  property, 
namely,  that  of  specific  performance,  will  be  considered  in  the  next 
chapter. 

1  Burgess  v.  Wheate,  1  W.  Bl.  150;  Wend.  385;  Oxenham  v.  Esdaile,  3  You. 

2  Story,  Eq.  §  1217,  n. ;   Sugd.  V.  &  P.  &  Jer.  264 ;  Ludlow  v.  Grayall,  11  Price, 

258 ;  Payne  v.  Atterbury,  Harring.  Ch.  58 ;  Small  v.  Attwood,   1   Younge,  507 ; 

414 ;  Coote,  265 ;   Lowell  v.  Mutual,  &c.  Cator  v.  Pembroke,  1  Bro.  801 ;  Regan  v. 

8  Cush.   132;    ^tna,   &c.   v.   Tyler,   16  "Walker,  2  Chandl.  133. 

(o)  It  has  been  held  in  Indiana,  that  a  solved,  has  a  lien  on  the  land  for  his  pur- 
vendee  of  real  estate  has  a  lien  thereon  chase-money  and  interest,  and  the  value 
for  the  money  paid  if  the  vendor  refuse  to  of  the  improvements  ;  nor  should  he  be 
convey,  even  as  against  a  subsequent  compelled  to  surrender,  until  they  are 
purchaser  with  notice.  Shirley  v.  Shirley,  paid  or  secured.  Griffith  v.  Depew,  3 
7  Blackf.  452.  So  in  Kentucky  and  Ala-  Marsh.  179 ;  Conner  v.  Banks,  18  Ala. 
bama,  a  vendee,  whose  contract  is  dis-  42. 


CHAP.   XSVIIL]  specific   PERFORMANCE.  431 


CHAPTER  XXYIII. 


SPECIFIC    PERFORMANCE. 

1.     Nature  and  bistory  of  the  remedy.                 12.  And  mutual. 

3.  Its  peculiar  application  to  contracts  13.  j^nd  reasonable  &ni  equitable  —  fraud, 
relating  to  real  estate.  mistake,  &c. 

4.  Questions  of  jurisdiction,  t«  7-em  and          16.  But  not  necessarily  iewe^ciai. 
in  personam.                                                                 17.  Public  policy. 

5.  P^orm  of  the  contract;  bond  with  18.  Consideration,  inadequate  or  exces- 
penaltJ^  sive. 

7.     Specitic    performance,   in    connection  20.     Price  fixed  by  arbitration.- 

with  other  modes  of  relief.  23.     Plaintiff  must  prove  performance  of 

8.  Denial  of  specific  performance,  and  his  own  contract. 
rescindinfj  of  the  sale,  compared.  26.     Partial  failure  of  title. 

9.  Compensation — damages.  30.     Statute    of   Frauds  —  part-perform- 
10.     Contract  must  be  cer<atft.                        ance.     Defences;  pleading;  evidence,  &c. 

1.  As  has  been  already  remarked,  the  most  common  exercise  of 
equity  jurisdiction,  in  reference  to  the  sale  and  purchase  of  real 
property,  is  in  the  form  of  specific  performance ;  whereby  one 
party,  instead  of  recovering  damages  from  the  other  for  a  breach 
of  contract  to  sell  or  buy,  and  more  especially  the  former,  enforces 
the  actual  execution  of  such  contract,  by  the  penalties  with  which 
a  Court  of  Chancery  is  armed  for  effecting  its  decrees.  This 
peculiar  jurisdiction  is  said  to  be  of  very  ancient  date,  if  not  coeval 
with  the  existence  of  Courts  of  Equity. ^  It  is  also  said,  that, 
before  the  time  of  Lord  Somers,  the  practice  used  to  be,  on  bills 
for  a  specific  performance,  to  send  the  party  to  law ;  and,  if  he 
recovered  damages,  the  Court  of  Chancery  entertained  the  suit ; 
otherwise  the  bill  was  dismissed.  But  no  such  practice  now  exists, 
if  indeed  it  ever  really  prevailed. ^ 

1  a.  In  general,  in  order  to  enforce  specific  performance,  the 
plaintiff  should  show  that  he  cannot  be  indemnified  in  damages.^ 
And  although,  when  the  plaintiff's  rights  cannot  be  protected  or 
enforced  at  law  except  by  numerous  and  expensive  suits,  equity 
may  interpose  by  injunction  or  specific  performance ;  yet  in  such 
cases,  generally,  the  plaintiff  must  first  establish  his  right  at 
law.* 

1  2  Story,  Eq.  §  716.  2  Ibid  §  738. 

3  McClane  ;;.  White,  5  Min.  178  ;  31  N.Y.  oi. 

*  Pennsylvania,  &c.,  v.  Delaware,  &c.,  31  N.Y.  91. 


432  LAW   OF    VENDORS   AND    PURCHASERS.     [CHAP.    XXVIII. 

2.  It  is  further  held,  that  the  maxim  tliat  equity  will  not  decree 
the  specific  performance  of  a  contract,  upon  whicli  an  action  at  law 
for  damages  will  not  lie,  only  means  that  the  contract  must  he  such 
as  the  law  would  have  recognized  if  sued  on  in  proper  time  and  under 
proper  circumstances.^  And  it  is  said,  on  the  one  hand,  that  spe- 
cific performance  will  sometimes  be  decreed  where  no  action  for 
damages  would  lie,  as  where,  through  mere  negligence,  and  without 
unfairness,  the  plaintiff  has  failed  to  comply  with  his  own  part  of 
the  contract ;  ^  and  on  the  other,  that  it  will  in  some  cases  not  be 
decreed,  though  an  action  might  perhaps  lie  for  damages,  as  where 
the  vendor's  title  is  involved  in  difficulties  which  cannot  be  re- 
moved.^ So  it  is  said,  the  right  of  a  vendor  to  come  into  a  Court 
of  Equity  to  enforce  a  specific  performance  is  unquestionable. 
Such  subjects  are  within  the  settled  and  common  jurisdiction  of 
the  Court.  It  is  equally  well  settled,  that,  if  the  jurisdiction 
attaches,  the  Court  will  go  on  to  do  complete  justice  ;  although  in 
its  progress  it  may  decree  on  a  matter  which  was  cognizable  at 
law.4 

8.  It  is  sometimes  held,  that  specific  performance  of  a  contract 
may  be  enforced  in  equity,  without  regard  to  the  character  of  the 
property  involved.^  But  the  peculiar  jurisdiction  of  Courts  of 
Equity,  with  reference  to  specific  performance,  over  contracts  relat- 
ing to  real  pj'operty ,  arises  from  the  fact,  that,  in  case  of  personal 
property,  no  particular  value  is  generally  attached  to  one  article  over 
others  of  the  same  kind,  and  therefore  full  compensation  may  be 
obtained  by  damages,  with  the  amount  of  which  another  similar 
article  may  at  once  be  purchased ;  while  the  value  of  real  property 
in  the  eyes  of  the  purchaser  may  depend  upon  circumstances  of 
position,  neighborhood,  soil,  and  in  general  upon  considerations  of 
taste  or  fancy,  for  which  damages  are  no  compensation.^  It  is 
said,  "  No  subject  is  more  proper  for  the  power  of  a  Court  of 
Chancery  in  decreeing  specific  execution,  than  a  contract  for  the 
sale  of  real  estate ;  for  what  is  agreed  to  be  done  ought  in  con- 
science to  be  done.  Nor  is  the  remedy  at  law  for  damages  com- 
plete or  adequate ;  for  the  thing  contracted  for  is  wanted,  and  the 
value  in  money  may  often  be  an  unsatisfactory  compensation."  '' 

1  Vf'hite  V.  Butcher,  6  Jones,  Eq.  231.  &  Duff  fc-.  Fisher,  15  Cah  375. 

2  Lennon  v.  Napper,  2  Sch.  &  Let".  *>  See  M'Garvey  v.  Hall,  23  Cal.  140; 
684.                                                                       Adderley  v.  Dixon,  1  Sim.  &  St.  607. 

3  2  Story,  Eq.  §§  748,  749.  "^  Ensign  v.  Kellogg,  4  Pick.  1. 
*  Cathcart  v.  Robinson,  5  Pet.  264. 


CHAP.    XXVIII.] 


SPECIFIC    PERFORMANCE. 


433 


Upon  these  considerations,  the  general  doctrine  is  laid  down,  that, 
where  a  contract  respecting  real  property,  in  whatever  form,  is  in 
its  nature  and  circumstances  unobjectionable,  it  is  as  much  a  mat- 
ter of  course  for  Courts  of  Ecjuity  to  decree  a  specific  performance 
of  it,  as  it  is  for  a  Court  of  Law  to  give  damages  for  the  breach 
of  it.i  (a) 

1  2  Story,  Eq.  §  751 ;  St.  Paul,  &c.  v.  Brown,  9  Min.  157  ;  Scliroeppel  v.  Hopper, 
40  Barb.  425. 


(a)  Witli  regard  to  the  claim  for  spe- 
cific performance,  as  depending  ui)on  the 
wiint  of  an  adequate  remedji  at  law:  it  lias 
been  held  in  a  late  Englisli  case,  that  the 
projectors  of  a  proposed  railroad  are  liable 
to  a  bill  for  specific  performance  of  a  con- 
tract to  purchase  land,  although  an  action 
at  law  might  also  be  maintained  against 
them.  Eastern,  &c.  i'.  llawkes,  35  Eng. 
Law  &  Eq.  8.  In  the  course  of  his  opinion. 
Lord  Cranworth  refers  particularly  to  two 
previous  cases,  where  a  contrary  doctrine 
was  said  to  have  been  held  by  the  Court : 
Webb  V.  The  Direct  London,  &c.  1  De  G. 
Mac.  &  G.  521 ;  and  Stuart  v.  The  Lon- 
don, &c.  ib.  721.  "  In  the  former  of  these 
cases  the  Court  proceeded  on  two 
grounds.  In  tlie  first  place,  the  terms  in 
wiiich  the  deed  was  framed  were  such  as 
to  lead  the  Court  strongly  to  the  conclu- 
sion that  the  whole  contract  was  meant  to 
be  conditional  on  the  line  being  formed, 
and  that  if  it  should  be  (as  in  fact  it  was) 
abandoned  by  its  projectors,  then  all  the 
provisions  of  the  agreement  were  to  fall  to 
the  ground ;  a  construction,  I  may  ob- 
serve, which  receives  great  support  from 
the  subsequent  case  of  Gage  v  The  New- 
market, &c.,  18  Q.B.  Rep.  457.  But  in- 
dependently of  that  difficulty,  the  case 
appeared  to  be  one  in  whicli  a  Court  of 
Equity  ought  not  to  interfere  in  favor  of 
the  plaintiff,  for  that,  by  any  such  inter- 
ference, we  should  be  doing  injustice  in 
the  attempt  to  add  to  the  legal  remedy. 
The  injury  which  tlie  plaintiff  sustained 
by  the  non-pertbrmance  of  the  contract 
was  tills :  though  he  was  left  with  the 
whole  of  his  land  untouched,  he  lost  all 
claim  to  the  £4,500,  and  might,  perhaps, 
have  sustained  damage  consequent  on  his 
having  been  for  five  years  liable  to  have 
any  portion  of  it,  not  exceeding  eight 
acres,  taken  by  the  company  for  the  pur- 
pose of  the  railway.  That  was  evidently 
a  case  for  compensation  by  action  for  dam- 
ages, and  not  for  relief  by  way  of  specific 
performance.  Indeed,  I  liardly  know  how 
a  decree  for  specific  performance  could 
have  been  there  enforced,  for  no  jiarticuiar 
eight  acres  had  been  contracted  for,  and 


the  company  had  no  power  to  select  eiglit 
acres,  except  for  the  purpose  of  making 
the  railway,  the  power  to  make  whicii  had 
long  since  ceased.  On  tliese  grounds  tiie 
Court  refused  to  interfere,  leaving  the 
plaintifl"  to  the  legal  remedy  on  his  cove- 
nant. 

"  The  circumstances  of  Lord  James 
Stuart's  case  were  similar  in  principle. 
The  only  or  principal  difference  between 
this  latter  case  and  that  previously  de- 
cided was,  that  in  Lord  .Tames  Stuart's 
case  there  was  no  contract  by  the  com- 
pany under  seal,  but  in  the  course  of  the 
argument  the  directors  ofiered  to  remove 
all  difficulty  on  that  head,  by  admitting, 
in  any  action  which  the  plaintiff'  might 
bring  against  them,  that  they  had  by 
deed,  under  seal,  covenanted  to  perform 
any  contracts  entered  into  by  the  agent 
of  the  projectors  before  the  passing  of  the 
act.  To  permit  the  plaintiff"  to  remain 
passive  till  the  directors  could  not  have 
any  use  for  the  land,  and  the  power  to 
make  the  line  had  expired,  and  then  to 
compel  them  to  select  and  purcliase  the 
land,  would  be  to  make  the  extraordinary 
interposition  of  the  Court  ancillary  to  in- 
justice instead  of  justice. 

"  Here  there  is  no  uncertainty  as  to 
the  subject-matter  of  the  purchase.  Tlie 
vendor  did  not  sleep  on  his  rights,  and 
wait  until  it  was  impossible  for  the  pur- 
chaser to  make  the  line.  On  the  con- 
trary, from  the  very  day  on  wliich  the 
contract  was  to  be  completed  he  insisted 
on  its  performance,  having  shortly  before 
that  time  quitted  possession  of  the  ])rop- 
erty,  and  within  less  than  five  months 
afterwards  he  filed  his  bill.  It  is  true 
that  the  directors,  after  the  filing  of  the 
bill,  allowed  the  time  to  j)ass  within  wliich 
they  were  bound  to  complete  tlieir  line. 
But  the  plaintiff"  is  not  to  blame  for  that. 
He  did  not,  either  actively  or  passively, 
mislead  the  defendants,  and  it  would  be 
impossible  to  hold  that  he  is  not  entitled 
to  the  relief  that  he  asks,  without  going 
the  length  of  saying  that  no  vendor  of  an 
estate,  contracting  to  sell  to  a  railway 
company,  can  ever  have  a  decree  for  a 


28 


434 


LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.    XXVIII. 


4.  Witli  reference  to  the  jurisdiction  of  the  Court,  as  deter- 
mined by  the  location  of  the  property  on  the  one  hand,  or  the  resi- 
dence of  the  defendant  on  the  other,  it  is  well  settled  in  Great 
Britain,  that  a  bill  for  specific  performance  may  be  maintained, 
though  the  land  is  situated  in  a  foreign  country,  if  the  parties  re- 
side within  the  territorial  jurisdiction  of  the  Court.  "  ^quitas 
agit  in  personam.''^  Thus  specific  performance  was  decreed  of  a 
contract,  entered  into  by  the  Proprietors,  respecting  the  bounda- 
ries of  the  colonies  of  Pennsylvania  and  Maryland.  So  of  an 
agreement  respecting  the  Isle  of  Man,  and  lands  in  Ireland.^  So, 
it  seems,  a  contract  made  in  South  Carolina,  for  land  lying  in 
another  State,  may  be  enforced  in  personam^  by  one  party  against 
the  other.2  And,  on  the  other  hand,  it  has  been  held,  that  specific 
performance  of  a  contract  to  convey  land  in  Massachusetts  may  be 
decreed  against  an  inhabitant  of  Connecticut,  who  has  been  served 
with  personal  notice  in  Massachusetts.^     So  the  Court  in  New 


1  Penn  v.  Baltimore,  1  Ves.  444  ;  Athol 
V.  Derby,  1  Ch.  Cas.  221;  Archer  v. 
Preston,  1  Vern.  77. 

specific  performance  if  the  company 
should  see  fit  afterwards  to  abandon  the 
undertaking,  with  a  view  to  which  the 
contract  was  made." 

Lord  Brougham  remarked  (p.  22),  "If 
these  cases  [above  reterred  to]  were  ap- 
plicable to  such  a  state  of  facts  as  those 
which  exist  in  the  present,  I  should  dis- 
sent from  them,  and  consider  that  they 
do  not  give  the  law  of  the  Court  ujyon  the 
subject  of  specific  performance.  But  I 
am  of  opinion  that  they  do  not  apply  to 
the  facts  of  this  case." 

Lord  Campbell  says  (p.  25),  "Where 
there  is  a  valid  executory  agreement  for 
the  sale  and  purchase  of  land,  there  can 
be  no  doubt  that  the  vendor  as  well  as  the 
purchaser  is  jtrimd  facie  entitled  to  resort 
to  a  Court  of  Equity  for  the  purpose  of 
having  the  contract  specifically  per- 
formed. Generally  speaking,  pecuniary 
damages  adequate  to  the  pecuniary  loss 
sustained  from  the  breach  of  the  contract 
would  be  an  indemnity  to  the  vendor ; 
but  still,  damages  would  not  place  him  in 
the  same  situation  as  if  the  contract  had 
been  performed,  for  in  that  case  he  would 
entirely  have  got  rid  of  his  land,  and  he 
would  have  in  liis  pocket  the  net  sum  for 
which  he  had  agreed  to  sell  it ;  whereas 
if  he  is  driven  to  his  action  at  law,  he  re- 
tains the  land,  and  he  can  only  recover 
the  difference  between  the  stipulated  price 
and  the  price  which  it  would  probably 


2  Ramsay  v.  Brailsford,  2  Desaus.  582. 

3  Dooley  v.  Watson,  1  Gray,  414. 


fetch  if  resold,  together  with  incidental 
expenses,  and  any  special  damage  which 
he  had  suffered.  In  every  case  justice 
requires  that  tlie  purcl)aser  should  be  en- 
titled to  specific  performance,  for  as  to 
him  no  amount  of  damage  would  necessa- 
rily be  an  adequate  compensation  ;  and 
tliere  must  be  reciprocity  of  remedy  be- 
tween vendor  and  purchaser.  Indeed, 
the  remedy  must  necessarily  be  afforded 
to  the  vendor  as  well  as  purchaser,  from 
the  well-known  doctrine  of  conversion 
upon  the  signing  of  a  valid  contract  for 
the  sale  of  land,  the  equitable  estate  tiien 
vesting  in  the  purchaser,  and  the  vendor 
then  holding  the  legal  estate  only  as  his 
trustee.  This  being  so,  the  onus  lies  upon 
the  appellants  to  show  that  tlie  respondent 
was  not  entitled  to  a  decree  for  specific 
performance.  Here  the  objection  of  de- 
lay, which  has  sometimes  very  properly 
prevailed,  cannot  be  taken,  and  it  cannot 
be  contended  that  the  vendor  has  lost  his 
right  to  the  remedy  he  seeks  by  doing 
any  thing  which  he  ought  not  to  have 
done,  or  by  omitting  to  do  any  thing 
whicli  he  ought  to  have  done  subsequently 
to  the  date  of  the  agreement,  with  good 
faith  and  punctuality.  He  has  performed 
his  part  of  the  agreement ;  he  has  always 
been  ready  and  willing  to  comjjlete  tlie 
purchase,  and  he  has  urgently  and  earn- 
estly pressed  the  company  to  complete 
it." 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  435 

York  may  compel  specific  performance  of  a  contract  respecting 
lands  in  Illinois.^  I)enio>  C.J.,  says  (p.  591),  "The  contract  was* 
for  the  purchase  of  lands  lying  in  the  State  of  Illinois,  but  the  par- 
ties arc  residents  of  this  State,  and  sulyect  generally  to  the  juris- 
diction of  its  courts.  The  defendant's  counsel  insists  that  the 
Court  below  had  no  jurisdiction  in  such  a  case  to  decree  a  specific 
performance.  It  is  not  denied  but  that  such  a  jurisdiction  existed 
in  the  Court  of  Chancery,  nor  but  that  it  passed  to  the  Supreme 
Court  by  the  provisions  of  the  present  constitution.  That  conces- 
sion could  not  be  avoided  consistently  with  a  settled  course  of  ad- 
judication.^ The  cases  in  the  English  Court  of  Chancery  will  be 
found  referred  to  by  Chancellor  Walworth  in  the  last  of  these 
cases.  The  doctrine  thus  established  is,  that  this  Court,  having 
jurisdiction  of  the  person  of  the  defendant,  will,  by  its  process  of 
injunction  and  attachment,  compel  him  to  do  justice,  by  the  exe- 
cution of  such  conveyances  and  assurances  as  will  affect  the  title  of 
the  property  in  the  jurisdiction  within  which  it  is  situated."  And 
in  a  later  case  it  is  held,  that  a  defendant  who  has  appeared  may 
be  compelled  to  convey  lands  situate  beyond  the  jurisdiction  of  the 
court.^(a) 

5.  The  precise  form,  in  which  a  contract  for  the  sale  of  real 
property  is  expressed,  is  immaterial  with  reference  to  the  right  of 
specific  performance.  Thus,  though  the  contract  appears  only  in 
the  condition  of  a  bond  witli  penalty,  or  an  agreement  for  liquidated 
damages  ;  it  will  be  enforced  as  an  agreement,  and  the  party  can- 
not escape  from  specific  performance  by  paying  the  penalty.'^ 

1  Newton  v.  Bronson,  3  Kern.  587.  '  Gardner  f.  OgJen,  22  N.Y.  (8  Smith), 

2  Massie   v.    Watts,    6    Cranch,    148;     327. 

Shattuck  V.    Cassidy,    3   Edw.  Ch.  152;  *  Dailey  v.  Litchfiokl,    10   Midi.    29; 

Ward  V.  Arredondo,  1   Hopk.  Ch.  213;  Hull  i^.  Sturdivant,  4(5  Maine,  34  ;  Hooker 

Mead  v.  Merritt,  2  Paige,  402 ;  Mitchell  v.  Tynclion,  8  Gray,  550  ;  Logan  v.  Wien- 

V.  Bunch,  ib.  606  ;  Sutplien  v.  Fowler,   9  liolt,  7  Bligh,  1  ;    Ensign  v.   Kellogg,  4 

ib.  280.  Pick.  1. 

(a)  In  Ohio,  specific  performance  may  State,  notwithstanding  §  375,  making  such 

be  liad  of  a  contract  to  convey  lands,  in  decree  operative  per  se  as  to  lands  within 

anotlier  State,  if  all  the  parties  are  within  the  State.     Ibid. 

the  jurisdiction  ;  otherwise  not,  unless  ju-  The  last  clause  of  §  46  of  the  Code, 

risdiction  is   by  law  acquired   of  absent  authorizing  suits  for  specific  performance 

parties.     Penn  v.  Hayward,  14  Ohio,  n.s.  "  in  the  county  where  defendants,  or  any 

302.  of  them,  reside,"  is  limited  to  suits  for 

Where  the  Court  has  acquired  jurisdic-  conveyance   of  land    situate   within    the 

tion   over  the  person  of  the   defendant.  State;  and  a  service  by  copy  of  summons 

obedience  to  its  decree  may  be  enforced  and  complaint  under  §  74,  where  the  suit 

by  attachment  for  contempt  under  §  488  is  for  conveyance  of  lands   without  the 

of  the   Code,  whether  the  lands  ordered  State,  will  not  confer  jurisdiction  over  the 

to  be  conveyed  lie  within  or  without  the  person  so  served.     Ibid. 


436  LAW    OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXVIII. 

6.  More  especially  will  this  rule  be  adopted, (a)  where  the  bond 
is  accompanied  by  another  absolute  agreement.  Thus  the  defendant 
agreed  in  writing  to  convey  land  to  the  plaintiff  on  certain  terms, 
and  at  the  same  time,  by  another  writing,  to  forfeit  a  certain  sum 
if  he  should  fail  so  to  convey.  Held,  the  plaintiff  was  entitled  to 
specific  performance  of  the  former  agreement,  upon  complying  with 
his  own  contract.  Shaw,  C.J.,  says,  "  The  promise  of  the  defend- 
ant to  pay  the  plaintiff  one  hundred  dollars,  if  the  defendant  should 
fail  to  perform  his  agreement  to  convey  the  land,  was  merely  a 
security  for  the  performance  of  that  agreement.  Courts  of  Equity 
have  long  since  overruled  the  doctrine  that  a  bond  for  the  payment 
of  money,  conditioned  to  be  void  on  the  conveyance  of  land,  is  to 
be  treated  as  a  mere  agreement  to  pay  money.  When  the  penalty 
appears  to  be  intended  merely  as  a  security  for  the  performance  of 
the  agreement,  the  principal  ol)ject  of  the  parties  will  be  carried 
out.  The  agreement  between  the  parties  in  this  case  is  clearly  an 
alternative  agreement.  It  was  an  absolute  agreement  to  convey 
real  estate,  and  may  be  treated  in  all  respects  as  such,  either  in  a 
Court  of  Law  or  Equity,  without  regard  to  the  note."  ^ 

7.  The  question  of  specific  performance  often  arises  in  connec- 
tion with  other  grounds  for  equitable  interference.  On  the  one  hand, 
where  specific  perfoi'mance  is  for  special  reasons  refused,  some 
proximate  relief  may  be  granted.^  And  the  defendant  may  sometimes 
have  equitable  relief,  where  the  bill  is  dismissed.  Thus  in  a  suit 
by  a  vendor  for  specific  performance,  upon  an  inquiry  as  to  title, 
and  a  certificate  that  a  good  title  had  not  been  deduced ;  held,  the 
defendant  should  have  an  order  for  return  of  the  deposit,  with  four 
per  cent  interest,  with  a  lien  therefor,  and  costs,  and  liberty  to 
apply  at  Chambers,  if  necessary  to  give  effect  to  the  lien.     And 

1  Dooley  v.  Watson,  1  Gray,  414,  416.         2  Bennett  v.  Abrams,  41  Barb.  619. 

(«)  The  jurisdiction  of  tbe  (Tex.)  coun-  certain    land   to   which   he   was   entitled 

ty  court  over  the  subject-matter  of  a  bill  by  virtue   of  his   lieudriylit,  as  a   citizen 

for  specific  performance  is  special  (Hart,  of  Texas;  on  condition,  that  if,  upon  the 

Dig.  art.  1102),  and  can  be  exercised  only  running  of  the  boundary  line  between  the 

wliere  there  is  a  bond,  or  the  agreement  United  States  and  Texas,  it  should  turn 

to  make  title  is  in  writing.  out   that   the   obligor   did   not  reside   in 

Any  written  evidence  of  the  contract,  Texas   at   the   Declaration  of  Independ- 

which  would  authorize  the  district  court  ence,  so  that  his  title  to  the  land  would 

to  decree  its  specific  execution,  under  the  fail,  he  should  refund  the  money.     Held, 

Statute  of  Frauds,  will  authorize  the  coun-  though  this  was  not  literally  a  bond  for 

ty  court  to  make  a  like  decree.  title,  yet  it   was   suflicient   to   give   the 

A  bond  recited  a  previous   contract,  county  court  jurisdiction,  in  a  suit  against 

by   which   the   obligor,   in   consideration  the  administrator  of  the  obligor  for  spe- 

of  the  payment  of  money  by  the   obli-  cific  performance.     Peters  v.  Phillips,  19 

gee,  had  agreed  to  convey  to  tlie  latter  Tex.  70. 


CHAP.    XXVIII.] 


SPECIFIC   PERFORMANCE. 


437 


the  bill  was  dismissed.^  And,  on  the  other  hand,  a  prayer  for  other 
relief  sometimes  results  in  a  decree  for  specific  performance,  Avitli 
such  terms  and  limitations  as  the  circumstances  of  the  case  may 
require.  Thus  a  bill  in  equity,  praying  specific  performance  of  an 
agreement  to  convey  land,  also  alleged  that  the  defendant  pur- 
chased the  land  as  his  agent  and  with  his  money,  and  therefore 
held  it  in  trust  for  him.  Held,  the  bill  was  not  inconsistent  in  its 
allegations,  and  might  be  supported  as  a  bill  for  specific  pcrform- 
anco ;  it  being  a  rule  of  equity  pleading,  that  a  bill  may  be  framed 
in  alternative  form,  and  facts  of  a  different  nature  alleged  to  sup- 
port it,  if  in  either  alternative  the  title  to  relief  will  be  the 
same.2(a) 


1  Turner  v.  Marriott,  Law  Eep.  (Eng.) 
Eq.  May,  1867,  p.  742. 


2  Gerrish  v.  Towne,  3  Gray,  82. 


(a)  Tlie  plaintiff,  being  defendant  in  an 
execution,  permitted  the  defendant,  the 
plaintiff  in  the  execution,  to  buy  certain 
lands  of  his  at  sheriff's  sale,  upon  wliich 
the  defendant  agreed  by  parol,  that  the 
plaintiff  might  sell  the  lands,  and  reap 
an_v  profit  on  the  sale,  after  paying  tlie 
defendant  the  sum  of  §375,  due  him  by 
the  plaintiff.  The  plaintiff  sold  the  land 
by  parol  to  A.  for  $(3-50,  of  which  A. 
was  to  pay  the  defendant  8375,  and  the 
residue  to  the  plaintiff.  In  pursuance  of 
this  agreement,  A.  paid  the  defendant 
the  §375,  but  failed  to  pay  the  plaintiff 
the  residue,  and  delivered  him  up  the 
land  in  consequence  thereof;  upon  which 
the  plaintiff  filed  his  bill  against  the  de- 
fendant for  a  specific  performance  of  his 
agreement  to  make  title  to  the  land,  or 
else  pay  tlie  money  received  from  A.  to 
him.  Held,  he  was  not  entitled  to  specific 
performance,  because  the  contract  was 
parol ;  nor  to  recover  back  the  money, 
which  could  be  recovered  only  by  A.,  if 
by  any  one,  the  contract  being  held  in- 
valid. Beaman  v.  Buck,  y  Sm.  &  M. 
210. 

A.  sold  land  to  B.  for  82,000,  to  be 
paid  shortly,  in  order  to  release  the  land 
from  certain  mortgages.  B.  paid  a  part 
of  the  purchase-money,  and  then  brotight 
a  bill  in  equity,  alleging  that  his  vendor 
was  insolvent,  was  trying  to  sell  the  land 
to  other  persons,  and  was  committing 
waste.  He  obtained  a  decree,  enjoining 
A.  from  selling  and  from  committing 
waste,  and  afterwards,  having  tendered 
good  notes  to  the  full  amount  of  the  i)ur- 
chase-money,  and  offering  to  perform  his 
part  of  the  contract,  he  brought  an 
amended  bill  to   compel   a   specific  per- 


formance. It  appeared  that  the  mortga- 
gees, to  whom  B.  had  tendered  good 
notes  to  the  amount  of  their  lien,  iiad  re- 
fused to  accept  them,  and  that  the  land 
was  sold  under  a  decree  of  foreclosure, 
and  bought  in  by  B.,  wlio  paid  cash  for  it, 
to  this  amount.  Held,  that  B.  had  a  right 
to  extinguish  the  lien  in  that  way,  and 
was  entitled  to  a  decree  for  sjiecific  i>er- 
fornumce.  Berry  v.  "Walker,  'J  B.  JNlon. 
464. 

Land  was  sold,  to  be  paid  for  in  instal- 
ments, a  deed  to  be  given  on  payment  of 
the  last  instalment.  The  vendees  entered 
and  enjoyed  possession,  the  last  instal- 
ment was  paid  to  the  administrator  of  the 
vendor,  and  the  vendees  brought  an  action 
at  law  to  recover  back  the  purchase- 
money,  for  a  breach  of  the  covenant  to 
convey.  Held,  on  a  bill  in  equity  by  the 
heirs  of  the  vendor,  to  enjoin  the  judg- 
ment at  law,  and  to  compel  specific  per- 
formance, that,  as  there  was  no  default  in 
the  vendor  during  his  life,  and  the  heirs 
were  infants  at  the  time  of  the  judgment, 
and  unable  to  convey,  and  as  the  vendees 
had  not  been  injured  by  the  want  of  a  con- 
veyance, having  been  in  possession  of  the 
land  sold  ;  the  judgment  at  law  should  be 
enjoined,  and  the  heirs,  on  completing 
their  title,  should  convey  the  land  to  the 
vendees.  Nesbit  v.  Moore,  'J  B.  iMon. 
508. 

In  New  York,  under  the  Code,  where 
specific  performance  is  refused,  tlaiiTni/is 
may  be  given.  Barlow  v.  Scott,  24  N.Y. 
(10  Smith),  40. 

But  to  justify  such  relief,  the  proper 
pleading  and  evidence  are  necessary. 
Yost  V.  Devault,  ',)  Iowa.  GO. 

So  where  a  bill  for  a  specific  perform- 


438 


LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXVIII. 


8.  Where  one  party  seeks  specific  performance  of  a  contract, 
the  other  may  resist  it  upon  the  same  grounds  on  which,  as  has 
been  seen  (chap.  27),  equity  often  interferes,  affirmatively,  to 
cancel  or  rescind  svich  contract.  But  the  general  rule  upon  this 
subject  is,  that  chancery  requires   stronger  reasons   for   setting 


ance  contains  a  prayer  for  general  relief, 
and  the  answer  admits  payment  of  part  of 
the  purchase-money,  and  contains  an  offer 
to  settle ;  the  Court,  althougli  it  cannot 
decree  specific  performance,  for  want  of  a 
sufficient  writing,  will  decree  an  account 
and  repayment.  Capps  v.  Holt,  5  Jones, 
Eq.  153. 

But  when  the  answer  to  a  bill  for  spe- 
cific performance  of  a  parol  contract  to  con- 
vey land,  and,  in  the  alternative,  for  com- 
pensation for  improvements,  denies  tlie 
terms  of  the  contract  as  set  out  in  the 
bill,  and  alleges  a  diiferent  one  which  was 
not  performed  on  account  of  the  miscon- 
duct of  the  complainant,  and  also  insists  on 
the  Statute  of  Frauds  ;  the  complainant  is 
not  entitled  to  eitlier  relief  sought.  Sain 
V.  Dulin,  G  Jones,  Eq.  195. 

Wliere  a  bill  asked  for  performance  of 
a  contract  to  convey,  and  the  decree  found 
that  the  plaintiff  had  an  existing  title,  and 
directed  her  to  be  quieted  therein  :  held, 
on  error,  the  discrepancy  was  formal 
merely,  and  no  cause  for  reversal. 
Thomas  v.  Brown,  10  Ohio,  n.s.  247. 

Where  a  purchaser  brouglit  an  action 
for  specific  performance  witliout  alleging 
defect  of  title,  a  decree  was  ordered  by 
the  Court  of  Appeals  to  be  entered  for 
specific  performance  on  payment  of  tlie 
balance  of  the  purchase-money,  and  tlie 
Circuit  Court  tlicn  allowed  additional 
pleadings  to  be  filed,  alleging  defective, 
&c.,  title.  Held,  the  vendor's  title  being 
of  record,  it  was  the  plaintiff's  duty  to 
investigate  it  before  tlie  first  trial,  and  it 
was  now  too  late  to  allege  defective  title ; 
but,  the  purcliaser  being  in  possession, 
payment  might  be  suspended  till  the 
adverse  title  could  be  investigated.  Den- 
ny V.  Wicl<liffe,  1  Met.  (Ky.),  216. 

On  a  bill  by  the  vendee,  who  by  reason 
of  his  fraud  is  not  entitled  to  a  convey- 
ance, he  may  still  have  the  amount  paid 
refunded  to  him.  Smith  v.  Lavin,  8  Wis. 
265. 

An  agreement  to  dispose  of  property 
by  will  in  a  sjiecified  manner,  made  on 
good  consideration,  will  be  enforced  when 
it  can  be  done  substantially,  altliough  not 
exactly.  Wright  v.  Tinsley,  30  Mis.  389. 
Where  a  bill  asks  for  rescission  or 
specific  performance,  to  either  of  which 
the  complainant  is  entitled,  and  no  special 
equity  exists,  it  will  not  be  retained,  for 


the  purpose  of  decreeing  compensation  for 
a  deficiency  in  the  quantity  of  land  con- 
veyed and  accepted.  Harrison  v.  De- 
ramus,  33  Ala.  463. 

The  plaintiff  gave  possession  to  the  de- 
fendants, a  railroad,  of  (certain  land,  re- 
quired for  the  road,  which  they  con- 
structed, giving  a  bond  to  pay  the  price  at 
a  future  day.  Upon  non-payment,  held, 
an  injunction  did  not  lie,  under  a  bill 
claiming  also  specific  performance,  against 
further  possession ;  though  perhaps  the 
plaintiff  might  be  entitled  to  a  receiver. 
Pell  V.  Northampton,  &c..  Law  Rep. 
(Eng.)  Eq.  February,  1867,  p.  99. 

When  a  contract  for  sale  had  been 
executed  by  delivery  of  a  deed  in  which 
the  grantee  was  named  John,  when  his 
true  name  was  James ;  held,  he  could  not 
enibrce  specific  performance,  but  should 
have  filed  his  petition  in  equity,  to  correct 
the  mistake.  Colt  v.  Beaumont,  32  Mis. 
118. 

Where  a  party  made  a  bond  for  title, 
and  afterwards  sold  the  land  for  an  ad- 
vanced price,  and  made  title  to  another, 
so  that  he  could  not  perform  his  contract 
specifically  ;  held,  he  was  chargeable  with 
this  price  with  interest.  Sugg  v.  Stowe,  5 
Jones,  Eq.  126. 

Where  the  complaint  does  not  allege 
that  a  good  title  cannot  be  made,  and 
prays  specially  for  a  conveyance,  and 
claims  no  other  relief;  and  where  the  de- 
fendant's conduct  is  not  shown  to  be 
fraudulent :  the  plaintiff  cannot  at  the 
trial  waive  the  relief  asked  for,  and  then 
prove  that  the  defendant  has  no  title,  and 
thereupon  charge  him  with  the  value  of 
the  land.     Currle  v.  Cowles,  6  Bosw.  452. 

The  plaintiffs,  unpaid  vendors  of  land 
to  a  railway.  A.,  filed  a  bill  against  A. 
and  B.,  the  lessee  of  A.,  being  in  posses- 
sion, for  specific  performance,  payment, 
an  injunction,  a  declaration  of  lien,  and  a 
sale  therefor,  and  a  receiver  of  the  estate 
of  A.  Held,  B.  was  properly  joined.  De- 
cree for  specific  performance,  and  pay- 
ment within  three  months,  and  that  there 
should  be  a  lien  against  both  companies. 
In  case  of  non-payment,  leave  to  apply  for 
an  injunction,  and  a  receiver  to  enforce 
the  lien.  Bishop,  &c.  v.  Mid-Hauts,  &c., 
Law  Rep.  (Eng.)  Eq.  Feb.  1868,  p.  17 ; 
aec.  Cosens  v.  Bognor,  &c..  Law  Rep.  1 
Ch.  594 ;  Law  Rev.  April,  1867,  p.  527. 


CHAP.   XXVIII.]  SPECIFIC   PERFORMANCE.  439 

aside  an  agreemejit,  or  disturbing  it  after  execution,  or  deliver- 
ing it  up  to  be  cancelled,  than  for  denying  specific  perform- 
ance.^(a)  So  equity  will  exercise  its  discretion,  by  dismissing 
bills  for  specific  performance,  with  costs,  although  under  the  same 
circumstances  it  would  not  cancel  the  agreement  on  a  bill  filed  for 
that  purpose.^ 

9.  We  have  already  had  frequent  occasion  to  consider  the  sub- 
ject of  compensation,  as  administered  in  Courts  of  Equity;  a 
remedy  commonly  applied  to  cases  of  part-performance,  or  a  partial 
failure  in  title  or  value  of  the  property  in  question.  It  may  bo 
added,  in  the  present  connection,  that,  although  a  vendor  cannot 
insist  upon  the  vendee's  accepting  a  part-performance  of  the  con- 
tract, yet  the  vendee  may  insist  upon  a  specific  execution  in 
part,  and  damages  for  the  residue,  where  the  vendor  is  unable 
to  perform  in  toto.(b}  And  the  Chancellor  will  direct  an  issue 
of  quantum  damnificatus.^  So  a  complainant  may  resort  to  a 
Court  of  Chancery  for  a  specific  conveyance  of  land,  or,  if  the 
vendor  cannot  convey,  then  for  damages ;  and,  if  the  specific  ex- 
ecution cannot  be  decreed,  the  Court  will  decree  the  damages.'*(e) 

10.  To  entitle  a  party  to  specific  performance  of  an  agreement 
for  the  sale  of  real  estate,  the  contract  must  be  certain  in  its  terms 
and  in  all  its  parts.^  Thus,  where  a  covenant  is  made  to  renew  a 
lease,  in  which  the  rent  is  not  fixed,  specific  performance  will  not 
be  decreed,^  Nor  of  an  agreement  for  a  lease  where  the  term  is 
uncertain."  Nor  of  an  agreement  to  renew  a  lease,  which,  after  stip- 
ulating that  the  lessee  of  certain  hotel  property  should  be  entitled 
to  a  new  lease  at  a  certain  rent,  provided  he  bought  the  furniture 

1  Seymour  u.  Delancey,  3  Cow.  445.  ^  German  v.   Machin,   6  Paige,   288; 

'i  Davis  V.  Symonds,  1  Cox,  402  ;  Mort-  1  McCart.  13 ;  Rudolph  v.  Conell,  5  Clarke, 

lock  V.  Buller,  10  Ves.  292;  Blackwilder  52.5;  Bast  v.  Alford,  20  Tex.  226;  Capps 

V.  Loveless,  21  Ala.  371.  v.  Holt,  5  Jones,  Eq.  153. 

3  Jones  V.    Shackleford,  2  Bibb,  411.  *>  Robinson  i\  Kettletas,  4  Edw.  Ch.  67. 

See  Stevenson  v.  Buxton,  37  Barb.  13.  ^  Myers  v.  Eorbes,  24  Md.  611. 

*  Fisher  v.  Kay,  2  Bibb,  434. 

(a)  See  p.  436.  of  the  present  value  of  her  interest,  by 

(b)  See  p.  246.  the  projjer  tables.     Hazelrig  v.  llutson, 

(c)  In  such  case  it  is  proper  (where     18  Ind.  481. 

the  vendor  is  dead)  to  make  the  heir  and  Equity  will  not  award  damages,  unless 

executor  parties.  some  covenant  or  contract  is  proved,  which 

A  decree  for  specific  performance  of  an  authorizes  a  decree  for  specific  perform- 

agreement  to  convey,  wliere  tlie  wife  re-  ance.      This  relief  is   founded  upon  the 

fuses   to   release   her   dower,  should  cal-  words  of  the  statute,   21  &  22  Vict.  ch. 

culate  the  amount  to  be  abated  on  this  27,  "  in  addition  to  or  in  substitution  for  " 

account,  not  by  estimating  the  full  sum  to  specific  performance.     Lewers  v.  Shattes- 

which  she  would  then  be  entitled  if  her  bury,  Law  Rep.  (Eng.)   Eq.  July,  1866, 

husband  were  dead,  but  by  a  calculation  p.  269. 


440  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXVIII. 

at  a  fixed  price,  thus  concludes :  the  "  times  or  credits  to  be  given 
by  the  lessor  to  the  lessee  shall  be  the  subject  of  arrangement  be- 
tween the  parties  ;  "  no  such  arrangement  having  been  made.^  Nor 
of  a  contract  "  for  the  sale  of  the  houses  in  Smithfield  Street," 
without  any  further  designation  of  the  situation,  size,  material  of, 
and  area  of  ground  embraced  by  the  houses,  and  without  disclosing 
to  whom  they  belonged,  at  the  date  of  the  alleged  contract.^  So 
execution  of  an  agreement  for  an  estate  at  ,£3,600  was  refused,  on 
account  of  a  rent  left  unsettled,  and  a  doubt  whether  it  was  five 
shillings  or  one.^  So,  upon  the  ambiguous  terms  of  a  contract,  as 
including  or  excluding  the  timber,  the  purchaser's  bill  for  specific 
performance  was  dismissed ;  and,  he  having  throughout  insisted 
upon  his  construction,  the  Court  would  not  compel  the  vendor  to 
convey,  upon  the  terms  originally  offered.^  So  the  terms  of  a  con- 
tract must  be  clearly  proved,^  more  especially  if  parol.^  And  the 
material  terms  of  the  contract  must  be  distinctly  set  forth.  Hence  a 
bill  brought  by  a  widow,  against  her  husband's  devisees  and  repre- 
sentatives, for  specific  performance  of  an  antenuptial  agreement, 
to  settle  on  her  "  a  plantation  and  permanent  home  for  life," 
must  distinctly  set  forth  what  land,  where  situate,  the  number  of 
acres,  &c.'^ 

11.  More  especially,  equity  will  not  decree  specific  execution  of 
an  uncertain  contract,  against  a  party  not  lawfully  competent  to 
execute  it.  Thus  A.,  tenant  for  life,  with  power  to  make  leases 
for  twenty-one  years  at  the  best  improved  rent,  made  a  lease  to  B., 
and  thereby  covenanted  "  for  the  term  of  his  life  to  renew  said 
lease  to  B.,  his  executors,  administrators,  and  assigns,  by  giving 
them  a  lease  for  twenty-one  years  when  applied  to."  B.  surren- 
dered the  lease,  under  a  clause  empowering  him  so  to  do ;  and 
afterwards,  upon  a  new  agreement,  A.  indorsed  on  the  old  lease, 
"  I  promise  and  agree  to  perfect  a  fresh  lease  to  B.  at  any  time 
he  shall  demand  the  same,  at  £5  a  year  less  than  the  within- 
mentioned  rent."  It  being  uncertain  whether  the  agreement  was 
for  more  than  one  term  of  twenty-one  years,  and  an  agreement  for 
a  further  lease  (even  if  clear)  being  in  fraud  of  the  power,  a  bill 
for  renewal  of  the  lease  for  a  second  term  of  twenty-one  years 

1  MoKibbin  i\  Brown,  1  McCart.  13 ;  *  Clowes  v.  Higginson,  1  Ves.  &  Bea. 
Hammer  v.  McEldowney,  46  Penn.  334.  524. 

2  Hammer  v.  McEldowney,  46  Penn.         ^  Lokerson  v.  Stillwell,  2  Beasl.  357. 
834 ;  ace.  Johnson  v.  Craig,  21  Ark.  533.  «  Smith  v.  McVeigli,  3  Stockt.  239. 

3  Middleton  v.  Wilson,  Lofft,  801.  "?  Mallory  v.  Mallory,  1  Busb.  Eq.  80. 


CHAP.    XXVIII.] 


SPECIFIC    PERFORMANCE. 


441 


was  dismissed.^(a)  But  where,  ii])on  an  agreement  to  convey  fifty- 
nine  acres  of  a  certain  section,  which  contained  about  eighty  acres, 
without  stating  definite  boundaries,  the  comphiinant  asked  for  a 
deed  in  tlie  words  of  the  bond  ;  the  relief  was  granted,  the  agree- 
ment being  lield  to  be  sufficiently  certain,  although  under  certain 
circumstances  it  might  require  further  litigation  between  him  and 
the  owner  of  the  residue  to  locate  their  tracts,'^ 

12.  Specific  performance  will  not  be  decreed,  unless  the  con- 
tract is  mutual;'^  or  where  one  party  only  is  bound  by  the  agree- 
ment ;'*(6)  or  where  there  is  not  a  quid  pro  quo.^i^c)     Upon  this 


1  Harnett  v.  Yeilding,  2  Sclio.  &  Lef. 
549. 

■^  Ring  V.  Ashworth,  3  Clarke,  452. 

3  Bodine  v.  Glading,  21  Penn.  50 ;  Ger- 
man V.  Machin,  6  Paige,  288. 

(a)  Uncertainty  as  to  the  rule  of  law 
applicable  to  the  case  has  also  been  held 
a  sufficient  objection  to  a  decree  of  spe- 
cific performance.  Thus,  upon  a  late  de- 
cision of  the  Court  of  Exchequer,  that  a 
presumption  from  non-pa3'ment  of  tithes 
cannot  bar  even  a  lay  impropriator,  the 
Lord  Chancellor,  though  holding  the  con- 
trary opinion,  would  not  compel  a  pur- 
chaser to  take  a  title  depending  on  this 
question;  and  dismissed  the  bill  against 
liim  for  a  specific  performance.  Rose  v. 
Calland,'5  Ves.  186.     See  p.  217. 

The  following  decision  relates  to  the 
claim  of  specific  performance  in  a  doubtful 
case :  Receipts  of  the  Comptroller-General 
for  part  of  the  purchase-money  were 
offered  as  evidence  of  the  sale  of  lands 
by  the  State.  On  the  other  hand,  the 
sheriff's  certificate  and  return  of  sale 
were  not  produced  nor  accounted  for ; 
one  witness  testified,  that  to  his  recollec- 
tion the  alleged  purchaser  was  not  present 
at  the  sale  ;  and  the  answer  alleged  that 
the  vendee  in  his  lite  denied  his  owner- 
ship. Held,  the  balance  of  evidence  was 
such  as  to  justify  the  Court  in  refusing 
specific  performance.  Everett  v.  Towns, 
17  Geo.  15. 

In  addition  to  this  main  ground  of  the 
decision,  Benning,  J.,  remarks  (p.  29), 
"  Taking  tlie  bill  to  be  true,  the  complain- 
ants need  no  help  from  equity.  Their 
lef)cil  title,  they  say,  is  complete.  They 
Bay  tlie  legal  title  vested  in  Everett,  at 
the  time  when  he  paid  the  purchase- 
money  to  the  State.  If  so,  what  use  is 
tliere  for  this  bill?     None. 

"  And  I  may  say  for  myself,  that  I 
know  of  nothing  that  gives  to  ;i.  Court  of 
Equity  thejmu-er  to  grant  the  i)rayer  of  this 
bill.     Whence  did  a  Court  of  Equity  get 


4  Benedict  r.  Lyncli,  1  Johns.  Ch.  373; 
Boucher  v.  Vanbuskirk,  2  A.  K.  Marsh. 
346. 

5  Shackelford  v.  Ilandley,  1  A.  K. 
Marsh.  370. 

the  power  to  nullify  an  act  of  one  of  the 
departments  of  government  '.  If  it  can 
nullify  a  grant  made  by  the  Executive 
Department,  why  may  it  not  equally  nul- 
lify a  commission  issued  by  that  depart- 
ment—  a  military  order  made  b}'  that 
department — in  a  word,  any  act  of  that 
dei)artment  ?  If  it  can  do  things  of  tiiis 
sort,  it  must  be  b_y  virtue  of  some  grant  of 
power  to  it  in  the  Constitution,  or  in  the 
law.  I  know  of  no  such  grant.  Such  a 
power  English  Courts  of  Equity  do  not 
pretend  to  have." 

{/')  Equity  will  not  enforce  sjiecific 
performance  of  a  contract  in  favor  of  a 
party  who  has  not  actually  performed,  or 
cannot  be  compelled  to  perform,  his  part 
thereof;  his  mere  offer  to  perform  is 
not  sufficient.  Cooper  v.  Pena,  21  Cal. 
403. 

The  plaintiff  sued  to  compel  convey- 
ance to  him,  by  the  defendant,  of  certain 
land,  basing  his  suit  on  a  bond  given  in 
1850,  in  consideration  that  the  plaintiff 
should  rei)resent  him  in  effecting  a  par- 
tition of  this  and  other  land,  between  the 
defendant  and  A.  Tlie  partition  was 
partially  eftccted  in  1850  ;  but  dilficulties 
induced  the  i)arties  to  postjjoiie  c()iii])le- 
tion,  until  the  boundaries  of  the  grant 
could  be  legally  settled.  This  was  not 
done  until  1857,  when  the  plaintiff  ofil'rcd 
to  go  on  and  complete  the  ])artitioii,  hut 
the  defendant  refused.  Held,  the  jiiaintiff 
could  not  be  comjielled  to  perforin  ;  that 
his  ofler  to  jjerform  was  not  eciuivalent  to 
lierformance  ;  that,  therefore,  he  could 
not  have  a  decree  for  sjiecific  ))crforniance, 
but  must  be  left  to  his  remedy  for  dam- 
ages.    Ibid.     See  p.  454. 

(c)  See  p.  03. 


442  LAW    OF   VENDORS   AND    PURCHASERS.    [CHAP.    XXVIII. 

ground  it  has  been  held,  that  an  infant  cannot  sustain  a  suit  for 
specific  performance.!  More  especially,  equity  will  not  enforce  a 
mere  voluntary  agreement,  not  valid  at  law,  against  a  legal  claim 
for  a  just  debt,  and  where  there  is  no  accident  or  fraud.^  But, 
although  the  rule  above  stated  may  be  considered  as  well  estab- 
lished, the  rights  of  parties  to  agreements  to  enforce  specific  per- 
formance are  not  co-extensive ;  for  their  respective  rights  depend 
upon  their  conduct,  and  the  conduct  of  one  may  give  him  the  right 
to  apply  to  the  Court,  while  the  conduct  of  the  other  may  debar 
him  from  that  right.^  And  the  objection  of  want  of  mutuality  may 
be  waived.  Thus  the  objection  to  a  suit  for  specific  performance 
brought  by  a  married  woman,  that  she  could  not  have  been  com- 
pelled to  perform  it,  comes  too  late,  after  she  has  fully  performed, 
and  the  objecting  party  has  reaped  the  full  benefit  of  such  per- 
formance.* So  a  bill  was  filed  by  a  railway  company,  for  specific 
performance  of  a  contract  for  the  purchase  of  land,  entered  into  by 
their  agent.  The  defendant  objected,  that  it  did  not  appear  that 
the  agent  was  authorized  under  the  corporate  seal,  and  therefore 
there  was  no  mutuality.  The  objection  was  overruled,  on  the 
ground  that  the  company  had,  before  the  bill  was  filed,  acted  on 
the  contract,  by  entering  into  possession  of  the  land  and  making  a 
railroad  over  it.^(a) 

1  Flight  I'.  Bolland,  4  Russ.  298.  4  Seager  v.  Burns,  4  Min.  141. 

2  Miiiturn  v.   Sevmour,  4  Johns.  Cli.  ^  London,  &c.  v.  Winter,  1  Cra.  &  Phil. 
500 ;  Woodcock  v.  Bennett,  1  Cow.  733.       57. 

3  South-eastern,  &c.  v.  Knott,  17  Eng. 
Law  &  Eq.  555. 

(a)  Conformably  with   the   prevailing  him  who  signed  it  not,  for  the  Statute  of 

rule  it  has  heen  recently  held  in  New  Jer-  Frauds  and  Perjuries,  &c.,  and  therefore 

se}',  that  specific  performance  will  not  be  in  equity  cannot  bind  the  other  parly,  for 

decreed,  wiiere  there  is  a  uHtnt  of  mutual-  both  must  be  bound  or  neither  of  them,  in 

ity.     Stoutenburg  v.  Tompkins,  1  Stockt.  equity.'     But   it   was   decreed    contrary. 

S82.  Armingar  v.  Clarke,  Bunbury's  Rep.  110. 

Upon  this  ground,  the  assignee  of  a  The  bill  was  dismissed  per  iotam  curiam, 

bankrupt,    or   one   claiming   under    him,  chiefly  upon  the  principle,  that  the  remedy 

cannot  maintain  a  bill  for  specific  perform-  was  not  mutual.     In  Owen  v.  Davies,  1 

ance,  unless  he  affirm  the   contract   and  Ves.  82,  the  bill  was  for  the  specific  per- 

make  it  mutual  in  reasonable  time.     Ibid,  formance  of  an  agreement  with  one  since 

The  Ohancellor  (p.  342)  gives  the  fol-  become  a  lunatic,  lor  the  sale  of  a  rever- 

lowing  view  of  the  decisions  upon  this  sion  upon  an  estate  for  life.     It  is  appar- 

subject :  "A  want  of  mutuality  is  an  ob-  ent  from  the  report  of  the  case,  that  the 

jection  to  a  decree  for  specific   perform-  defence  insisted  on  was,  that  the  remedy 

ance  in  this  case.     Let  us  see  how  far  the  was  not  mutual,  because  the  rights  of  the 

Court  has  carried  this  objection.     In  the  parties  were  altered  on   account  of  this 

case  of  Hatton  v.  Gray,  2  Cha.  Ca.  164,  change  in  the  condition  of  one  of  the  par- 

Hatton  sold  houses  to  Gray  for  two  thous-  ties.     The  Lord  Chancellor  did  not  deny 

and  pounds.     The  note  of  the  agreement  the  principle  contended  for.     He  said,  '  It 

was  signed  by  Gray  only.     The  solicitor  is  certain,  that  the  change  of  the  condi- 

said  in  argument,  '  The  note  binds   not  tion  of  a  person  entering  into  an  agree- 


CHAP.    XXVIII.] 


SPECIFIC    PERFORMANCE. 


443 


13.  Where  a  contract  is  fiiirly  made  and  witliout  mistake,  by 
competent  parties,  upon  good  consideration,  and  unattended  with 
circumstances  which  make  its  enforcement  inequitable ;   a  mere 


ment,  liy  becoming  lunatic,  will  not  alter 
the  rights  of  tiio  parties,  which  will  be  the 
same  as  before,  provided  they  can  come 
at  the  remedy.  As  if  the  legal  estate  is 
vested  in  trustees,  a  Court  of  iMjnity 
ought  to  decree  a  peribniiance  ;  and  the 
act  of  God  should  not  change  the  riglits 
of  the  parties  ;  but  if  the  legal  estate  be 
vested  in  the  lunatic  himself,  that  may 
prevent  the  remedy  in  e(iuity,  and  leave 
it  at  law.'  In  1  A'tk.  2  (Stapilton  v.  Sta- 
pilton)  the  general  rule  was  admitted. 
The  mutuality  was  destroyed  b}'  the  act 
of  God.  The  agreement  was  such  that 
both  parties  run  this  same  risk.  The 
Lord  Chancellor  said,  '  The  chance  was 
equal,  who  died  first,  Henry  or  Philip.' 
In  1  Schoales  &  Lefroy,  18  (Lawrenson  r. 
Butler)  Lord  Chancellor  Redesdale  is  for 
adhering  to  the  rule,  as  to  mutuality, 
most  rigidly.  He  remarks  in  that  case, 
'  It  is  said  that  Courts  of  Equity  have 
decreed  performance  in  cases  where  one 
])arty  only  was  bound  by  the  agreement. 
I  believe  it  would  be  difficult  to  find  a 
case  where  that  has  been  done,  particu- 
larly a  late  case.  In  the  case  of  Hatton 
V.  Gray,  2  Ch.  Cas.,  it  was  considered  as 
sufficient  that  the  agreement  sliould  be 
signed  by  the  party  against  whom  the 
performance  was  sought,  because  such  are 
the  words  of  the  Statute  of  Frauds  ;  now, 
such  certainly  is  the  import,  that  no 
agreement  shall  be  in  force  but  when  it  is 
signed  by  the  party  to  be  charged ;  but 
the  statute  does  not  say  that  every  agree- 
ment so  signed  shall  be  enforced ;  the 
statute  is  in  the  negative.  But  this  f//c/»m 
of  Lord  Redesdale,  that  an  agreement 
signed  by  one  party  only,  cannot  be  en- 
forced against  that  party,  is  not  law. 
Since  this  case  in  Schoales  &  Lefroy,  it 
has  frequently  been  otherwise  decided. 
The  Master  of  the  Rolls,  in  2  Jacob  & 
Walker,  428  (Martin  v.  INIitchell)  seems 
to  think  that  the  party  who  had  signed, 
had  a  locus  j)piiilcnli(r,  and  was  at  liberty 
to  recede  until  the  other  had  signed,  or 
in  some  manner  made  it  binding  upon 
himself.  In  tlie  case  of  Flight  v.  I'olland, 
4  Kuss.  675,  it  was  decided  that  an  infant 
cannot  sustain  a  suit  for  the  sj)ccific  jier- 
formance  of  a  contract,  because  the  remedy 
is  not  mutual.  But  in  Clayton  r.  Ash- 
down,  2  Vin.  393,  pi.  1,  a  specific  per- 
formance (of  a  contract)  made  by  an  in- 
liuit  was  decreed  on  the  ground  that  the 
infant  had  attained  his  fuH  age,  and  had 
affirmed  the  contract  before  the  bill  was 


filed.  In  the  cases  already  referred  to, 
where  the  suits  were  maintained  on 
agreements  signed  only  by  one  party,  it 
was,  as  was  remarked  by  the  Master  of 
the  Bolls,  in  4  Kussell,  first  because  the 
Statute  of  Frauds  only  recpiires  the  agree- 
ment to  be  signed  by  the  jiarty  to  be 
charged ;  and  ne.xt,  it  is  said  that  the 
plaintiff"  by  the  act  of  filing  tlie  bill,  has 
made  the  remcily  mutual.  From  a  re- 
view of  all  the  authorities,  it  will  apjiear 
to  be  an  olijcction  to  decreeing  a  specific 
performance,  tiiat  the  parties  are  not  mu- 
tually bound  to  fulfil  it,  and  that  the  Court 
will  not  enforce  such  a  contract,  when  the 
party  who  is  not  bound  by  the  agreement, 
has  taken  an  undue  advantage  of  his  posi- 
tion, to  the  injury  of  the  other  part^'. 
For  instance,  if  an  infant  may  make  a 
contract  mutual  by  affirming  it  after  he 
comes  of  age  ;  if  the  property  is  of  a  char- 
acter subject  to  fluctuation  in  its  value, 
the  Court  would  not  allow  him  to  specu- 
late upon  his  position,  and  take  his  own 
time  to  affirm  the  contract.  A  want  of 
diligence  might,  imder  such  circum- 
stances, be  sufficient  ground  for  the 
Court's  refusing  its  aid.  To  apply  the 
rule  to  the  case  before  lis.  This  contract 
is  mutual  in  its  terms,  and  there  is  a  mu- 
tuality of  reniedy  to  the  parties.  Tiie  one 
agrees  to  sell  at  a  fixed  jirice,  and  the 
other  covenants  to  give  it.  If  either  party 
had  died,  the  mutuality  of  remedy  would 
not  have  been  destroyed.  The  represen- 
tatives of  the  deceased  party  would  have 
been  bound  to  fulfil  the  contract,  or  if 
Wilde  had  sold  and  assigned  his  interest, 
Tompkins  could  still  have  enforced  the 
agreement  against  Wilde.  But  the  mo- 
ment Wilde's  interest  in  this  contract 
passed  into  the  hands  of  his  assignee  in 
bankruptcy,  all  reciprocity  as  to  the  reme- 
dy was  destroyed.  I  am  not  willing, 
however,  to  say  that,  from  the  mere  fact  of 
the  mutuality  being  destroyed  under  these 
circumstances,  the  Court,  on  that  account 
should  refuse  its  aid  to  enforce  a  specific 
performance.  Such  an  ai)j)lication  of  the 
rule  might  contravene  the  policy  of  the 
bankrupt  law,  by  dejtriving  the  creditors 
of  a  beneficial  interest  in  a  valuable  part 
of  the  bankrujit's  estate.  But  if  the 
assignee,  or  a  i)erson  holding  under  him, 
seeks  a  specific  performance,  he  must 
affirm  the  contract  and  make  it  mutual, 
at  least  within  a  reasonable  time.  If  he 
takes  advantage  of  his  ])osition  to  specu- 
late upon  the  opposite  party,  a  Court  of 


444 


LAW    OF    VENDORS    AND    PURCHASERS.     [CHAP.    XXVIII. 


naked  hardness  of  bargain  is  held  no  valid  objection  to  its  enforce- 
ment in  equity.^  But,  specific  performance  being  not  a  matter  of 
right,  but  of  discretion, -(a)  equity  will  not  decree  a  specific  execu- 
tion of  articles,  where  they  appear  to  be  unreasonable  or  foimded  on  a 
fraud.^(b}  Nor  in  a  hard  case  ;  more  especially  where  the  plaintiff 
had  not  complied  with  the  terms.^  Nor  where  it  is  practically  im- 
possible for  a  party  to  specifically  perform  a  contract.  As  where 
the  respondent  had  conveyed  the  lands  to  strangers,  not  made 
parties,  nor  charged  with  notice.^  Nor  where  great  damage  would 
result  to  one,  without  equal  benefit  to.  the  other  party .^  Thus, 
under  circumstances  that  would  have  amounted  to  a  breach  of 
trust,  inadequacy  of  consideration,  arising  from  gross  negligence 
of  the  agent,  and  a  want  of  due  authority ;  the  bill  was  dismissed, 
though  tlie  plaintiff  was  unimpeached,  without  prejudice  to  his 
remedy  at  law.^     So  where  the  purchaser  by  writing  of  an  infant's 

See 


1  Morrison  v.  Peay,  21  Ark.  110 
p.  445. 

2  Blackwilder  v.  Loveless,  21  Ala. 
371 ;  Pickering  v.  Pickering,  38  N.H.  400 ; 
Young  V.  Daniels,  2  Clarke,  12G ;  Rudolph 
V.  Conell,  ib.  525  ;  Stone  v.  Pratt,  25  111.  25. 

3  Young  V.  Clerk,  Finch's  Prec.  538; 
Seymour  r.  Delancey,  6  Johns.  Ch.  225  ; 

Equity  will  not  encourage  or  aid  him  in 
such  speculation.  By  the  terms  of  the 
agreement  in  question,  Wilde  was  enti- 
tled to  a  conveyance  of  the  property  on 
his  paying  tlie  consideration-money,  at  any 
time,  on  or  before  the  4th  of  February, 
1846.  The  assignee  came  into  the  posses- 
sion of  the  contract  July  16,  1842.  He 
took  no  steps  towards  assuming  its  re- 
sponsibilities, or  enforcing  its  fulfilment, 
but  ten  months  afterwards  sold  at  public 
auction  all  his  right,  title,  and  interest  in 
it,  to  the  complainant  for  three  dollars  and 
seventy-five  cents.  What  was  the  rela- 
tive situation  of  the  complainant  and  the 
defendant  all  this  time  'i  Here  was  an 
agreement  which  the  defendant  could  en- 
force against  no  one.  It  related  to  prop- 
erty, from  its  very  character  fluctuating 
in  its  value.  Could  the  complainant  rest 
upon  liis  oars  until  February,  1846  ;  then, 
if  in  the  mean  time  the  property  doubled 
in  value,  demand  it  at  his  pleasure  of  the 
defendant,  or,  if  it  became  valueless,  be  at 
liberty  to  cast  it  a  burden  upon  him, 
without  any  means  of  redress  for  such  a 
wrong  ?  And  all  this  without  any  negli- 
gence or  want  of  foresight  in  the  defend- 
ant. The  contract  was  made  before  the 
bankrupt  law  was  passed,  and  of  course 
the   defendant  could  not  anticipate,  and 


Clarke  v.  Rochester,  &c.  18  Barb.  350; 
Torrey  v.  Buck,  1  Green,  Ch.  367. 

4  Rugge  V.  Elhs,  1  Desaus.  161 ; 
Chambers  v.  Livermore,  15  Mich. ;  Law 
Reg.  Aug.  1867,  p.  635. 

^  Ferrier  v.  Buzick,  2  Clarke,  136. 

6  Socy,  &c.  V.  Butler,  1  Beasl.  498. 

T  Mortlock  V.  Buller,  10  Ves.  292. 

therefore  did  not  provide  against  such  a 
contingency.  Would  it  be  equitable,  un- 
der such  circumstances,  for  this  Court  to 
countenance  the  complainant  in  taking 
advantage  of  his  position,  and  in  speculat- 
ing upon  the  defendant ;  and  more  espe- 
cially when  he  rislcs  only  three  dollars  and 
seventy-five  cents  in  the  adventure  1  The 
complainant  waited  until  the  7th  of  Octo- 
ber, 1845,  about  four  months  before  the 
time  for  executing  the  contract  expired, 
and  for  more  than  three  years  after  his 
purchase,  and  then  formally  tendered  him- 
self ready  to  assume  its  responsibilities. 
In  the  mean  time  the  property  increased 
some  fifty  per  cent  in  value." 

A.  leases  to  B.  for  one  year,  for  a  rent 
of  one-tiiird  in  kind.  "If  B.  shall  conclude 
to  purchase,  &c.,  one  undivided  half,  &c., 
on  or  before  [such  a  time]  he  is  to  have  a 
deed,  &c.,  on  payment  of  a  certain  sum." 
Held,  not  necessarily  wanting  in  mutual- 
ity.    Crawford  i\  Paine,  19  Iowa,  172. 

(a)  That  discretionary  does  not  mean 
capricious,  see  Bowen  v.  Irish,  &c.,  6 
Bosw.  245.  See  also  Lear  ?'.  Chouleau,  23 
111.  39 ;  Huntington  v.  Rogers,  9  Ohio, 
N.s.  511 ;  Rogers  v.  Mitchell,  41  N.H. 
154. 

{h)  See,  as  to  the  point  of  reasonable 
time,  Smith  v.  Lawrence,  15  Mich.  499. 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  445 

land  from  him  brought  a  bill  to  compel  performance,  on  the  ground 
that  he,  in  combination  with  his  father,  fraudulently  represented 
himself  to  be  of  age  ;  and  it  appeared  that  the  purchaser  had 
notice  that  tliere  was  great  doubt  as  to  the  seller's  age,  and  also 
that  the  bargain  was  a  bad  one  on  the  part  of  the  infant,  who  was 
under  the  control  of  his  father ;  and  that  the  latter  assumed  the 
whole  control  of  the  negotiation,  and  received  the  benefit  of  the 
price. 1  So  it  is  held,  that  the  difference  between  that  degree  of 
unfairness,  which  will  induce  a  Court  of  Equity  to  interfere  actively, 
by  setting  aside  a  contract,  and  that  which  will  induce  a  Court  to 
withhold  its  aid,  is  well  settled  ;(a)  that  the  plaintiff  must  come 
into  court  ivitli  clean  hands ^  and  that  the  defendant  may  resist  a 
bill  for  specific  performance,  by  showing  that,  under  the  circum- 
stances, the  plaintiff  is  not  entitled  to  the  relief  he  asks.  As  in 
case  of  omission  or  mistake  in  the  agreement ;  or  where  it  is  un- 
conscientious or  unreasonable  ;  or  where  there  has  been  conceal- 
ment, misrepresentation,  or  any  unfairness  ;  and  more  especially  if 
to  any  unfairness  a  great  inequality  between  the  price  and  value 
be  added. ^  So  it  is  held,  that,  in  decreeing  specific  performance, 
the  Court  is  bound  to  see  that  it  really  does  that  complete  justice 
which  it  aims  at,  and  which  is  the  ground  of  its  jurisdiction. 
Hence,  if  the  claim  for  a  deed  is  not  just  and  reasonable,  if  tlie 
party  has  been  grossly  negligent  of  his  rights,  or  has  abandoned 
his  contract,  equity  will  not  afford  him  relief.^  So  where  the  con- 
tract appears  hard  or  unreasonable  in  itself,  or  where,  from  a  mate- 
rial change  of  circumstances  since  the  contract ;  the  performance 
would  be  attended  with  peculiar  hardship  to  the  defendant ;  the 
complainant  will  be  left  to  his  remedy  at  law.'*(5) 

14.  3Ilsreprese7itatio7i,  though  in  a  slight  degree,  is  an  objection 

1  Dibble  v.  Jones,  5  Jones,  Eq.  389.  *  Perkins  v.  Wright,  3  Har.  &  JM'IIen. 

2  Best  V.  Stow,  2  Sandf.  Ch.  298.  326 ;  Clitherall  v.  Ogilvie,  1  Desaus.  2-30 ; 

3  Iving  V.  Morford,  1  Saxt.  Ch.  274.  Edwards  v.  Ilandley,  Hard.  (302. 

(a)  See  chap.  27.  son   would   not  be   decreed.     Brewer  v. 

{h)  Where    the    sons-in-law    and    the  Church,  4  Jones,  Eq.  418.     Sec  p.  443. 

only  son  of  a  very  aged  man,  witliout  the  Specific  performance  of  an  agreement 

participation  of  the  wives  of  the  former,  to  assent  to  any  division  of  lands  held  in 

and  without  the  knowledge  of  the  father,  connnon  which  "the  majority  of  interest 

entered  into  a  written  agreement  that  they  shall  decide  just  and  equitable,"  will  not 

would  divide  all  the  property  of  the  fa-  be  enforced,  if  the  agreement  is  construed 

ther  equally  among  them  ;    held,  on  the  to  authorize  the  majority  to  set  off  to  any 

father's  afterwards  surrendering  the  per-  owner  a  certain  portion  of  tlie  land  with- 

sonal    projjerty   to    the   sons-in-law,   and  out  liis  assent.     Ilarkness  v.  Remington, 

conveying  the  land  to  the  son,  a  specific  7  K.I.  154. 
performance  of  the  agreement  against  the 


446  LAW    OF   VENDORS    AND    PURCHASERS.     [CHAP.    XXVIII. 

to  specific  performance ;  though  it  might  not  be  sufficient  to  re- 
scind the  contract.^  So  a  misrepresentation  of  the  purchaser  as 
to  the  land.^  So  a  mere  concealment  on  the  part  of  the  vendor.'^Ca) 
So  there  shall  be  no  specific  performance,  in  case  of  any  surprise, 
making  it  not  fair  and  honest  to  call  for  it ;  but  the  plaintiff  will 
be  left  to  law.''^  So  in  case  of  accident  or  mistake  ;  as  where  a  lot 
is  sold,  and  supposed  by  both  parties  to  be  of  certain  dimensions, 
and  found  afterwards  to  be  more  than  as  large  again. ^(5)  So  a 
misrepresentation  made  by  the  vendor  in  a  matter  of  substance, 
affecting  the  value  of  the  estate  sold,  is  a  good  defence  to  a  suit 
for  specific  performance,  although  the  vendor,  as  well  as  the 
vendee,  was  ignorant  of  its  untruth. (c)  As  in  case  of  an  errone- 
ous statement,  that  land  in  a  distant  State  was  situated  in  a  par- 
ticular county,  in  which  the  purchaser  desired  to  buy.^(c?) 

15.  The  fraud  relied  upon  as  a  defence  may  be  a  fraud  against 
third  persons.  Thus,  upon  an  execution  against  the  plaintiff  and 
one  A.,  the  plaintiff's  dwelling-house  was  levied  on  and  adver- 
tised for  sale.  By  request  of  the  plaintiff,  the  defendant  bid  off 
the  premises,  and  took  a  deed  from  the  sheriff,  with  the  mutual 
purpose  of  protecting  the  property  from  the  creditors  of  the  plain- 
tiff. Held,  the  plaintiff  could  not  maintain  a  bill,  to  enforce  a 
conveyance  from  the  defendant.'^  So,  where  the  agreement  ap- 
pears to  have  been  made  to  defeat  or  defraud  a  creditor  of  the 
plaintiff,  or  an  intervening  purchaser  at  a  sheriff's  sale,  under  a 
judgment  and  execution  against  him ;  specific  performance  will 
not  be  decreed.^(e) 

1  Cadman  v.  Horner,  18  Ves.  10.  6  Best  v.  Stow,  2  Sanclf.  Ch.  298. 

2  Kelley  v.  Sheldon,  8  Mis.  258.  7  Baldwin  v.  Campfield,  4  Ilalst.  Ch. 
»  Shirley  v.  Stratton,  1  Bro.  440.               600.     See  Fackler  v.  Ford,  24  How.  322. 

4  Mortlock  V.  BuUer,  10  Ves.  292.  »  St.  John  v.  Benedict,  6  Johns.  Ch. 

^  Schmidt  v.  Livingston,  3  Edw.  213 ;     111. 
Mason  v.  Armitage,  13  Ves.  25. 

(a)  See  chap.  22.  but  the  sale  by  B.  to  stand.     Whorwood 

(b)  See  chap.  21.  v.  Simpson,  2  Vern.  186. 

(c)  See  chap.  22.  A.  articles  with  B.  for  the  purchase  of 

(d)  A.  articles  to  sell  lands  to  B.  for  an  estate  of  £180  per  annum,  for  which 
£15,000,  the  whole  to  be  paid  in  money,  he  is  to  give  thirty-five  years'  purchase, 
or  in  so  much  land  returned  as  would  upon  a  grant  and  conveyance  to  him,  and 
make  up  what  he  paid  short  of  the  pays  £50  in  part ;  but,  discovering  that 
£15,000.  A.  conveys  part  of  the  lands  to  £30  per  annum  of  the  lands  were  copy- 
B.,  and  by  his  persuasion  undervalues  liold,  refuses  to  go  on.  On  a  bill  by  B., 
that  part.  Then  B.  sells  this  part  to  C.  equity  will  not  decree  specific  execution, 
and  would  then  have  returned  so  much  tlie  agreement  being  inequitable  ;  but 
of  the  rest  as  would  make  up  the  £15,000.  will  order  the  £50  to  be  paid  back.  Hick 
Upon  a  bill  to  set  aside  the  articles,  and  v.  Phillips,  Free.  Cha.  575. 

a  cross  bill  to  have  them  performed;  tlie  (e)  As  one  of  the  erjnities  afl^ecting  the 

articles  were  set  aside  as  unreasonable ;     question  of  specific  performance,  may  be 


CHAP.    XXVIII.] 


SPECIFIC   PERFORMANCE. 


447 


16.  Specific  performance,  however,  will  not  l)e  refused,  merely 
because  the  contract  is  a  losing  one  for  the  defendant.^     Tiius  the 

1  London  v.  Richmond,  2  Vern.  421. 


further  briefly  considered  the  question  of 
tinip,  which  has  alread3'  been  made  tiie 
subject  of  a  distinct  ciiapter.  yee  cliap.  11. 

Time  is  lield  material,  thougli  part  of 
the  price  has  been  paid  (Steele  v.  Bigi^s, 
22  111.  643),  more  especially  where  ex- 
pressly so  stipulated  (Davis  v.  Stevens, 
3  Clarke,  158),  or  where  there  is  an  in- 
crease of  value.  Green  v.  Courtland,  10 
Cal.  317. 

So  where  A.  had  a  claim  on  public 
land,  was  in  possession  about  six  years, 
and  then  procured  B.  to  intei-  the  land, 
and  took  a  lease  from  him,  agreeing 
therein  to  quit  at  the  end  of  the  term, 
and  that,  if  he  then  paid  B.  8100,  he  should 
liave  a  quitclaim  deed,  and  with  a  stipu- 
lation that  "  the  above  shall  be  forfeited  if 
either  shall  not  keep  all  the  covenants  ;  " 
held,  this  was  not  a  mortgage,  as  no  loan 
appeared  from  B.  to  A.,  and  no  convers- 
ance from  A.  to  B. ;  that,  as  a  contract, 
time  was  of  its  essence,  and  B.,  after  the 
day,  held  nothing  to  enforce  against  A., 
and  specific  performance  was  refused. 
Usher  v.  Livermore,  2  Clarke,  17. 

If  the  plaintiff  has  been  guilty  of  gross 
laches,  or  applies  for  relief  after  a  long 
time,  no  equitable  circumstances  being 
shown,  or  has  apparently  long  held  back 
from  an  assertion  of  his  rights  with  a  view 
to  speculate  on  the  possibility  of  favor- 
able changes  by  the  lapse  of  time ;  spe- 
cific performance  will  not  be  decreed. 
Pickering  v.  rickering,  38  N.H.  400.  As 
where  sjjecific  performance  of  a  contract 
to  convey  a  reversion  was  sought  after 
nearly  ten  years,  and  after  the  reversion 
of  dower,  as  it  existed  at  the  date  of  the 
contract,  had  been  converted,  by  the  mi- 
timely  death  of  the  widow,  into  a  present 
estate  in  fee,  and  there  was  no  satisfactory 
explanation  of  the  causes  of  the  delay,  lb. 

A.  made  a  contract  with  B.,  under 
which  B.  became  entitled  to  a  number  of 
acres  of  land  out  of  one  of  two  different 
tracts  at  his  "option,  or  to  a  certain  sum  of 
money  with  interest.  A.  died,  and  after 
eighteen  years  B.  brought  his  action  on 
the  contract.  Held,  if  it  devolved  on  B. 
to  take  the  initiative  in  the  execution  of 
the  contract,  he  had  lost  his  rights  by 
laches ;  if  on  A.,  and  the  contract  was 
not  executed  within  a  reasonable  time,  it 
became  a  moneyed  demand,  and  became 
stale  unless  prosecuted  within  four  years 
after  the  lapse  of  such  reasonable  time. 
Watson  V.  Inman,  23  Tex.  531. 

Even  where  time  is  not  of  the  essence 


of  a  contract,  one  seeking  specific  per- 
formance after  delay  in  payment  must 
show  a  good  excuse.  Young  r.  Daniels, 
2  Clarke,  126. 

The  Court  refused  to  decree  perform- 
ance of  an  agreement  to  convey,  demanded 
by  the  defendants  in  a  suit  by  tiie  vendor 
to  set  aside  the  agreement,  because  they 
had  slept  on  their  rights  for  five  years 
after  his  refusal  to  execute  the  deeds. 
McWilliams  r.  Long,  32  Barb.  104. 

So  specific  performance  of  an  agree- 
ment to  convey  land  to  a  railroad  corpora- 
tion, will  not  be  decreed,  on  a  bill  in 
equity  filed  by  them  more  than  three 
years  after  the  other  party  has  refused  to 
perform  it,  and  after  they  have  located 
their  road  over  other  land,  including  but 
a  small  portion  of  this,  and  after  this  land 
has  greath'  increased  in  value ;  without 
any  steps  taken  by  the  corporation,  mean- 
time, to  enforce  the  agreement.  Boston, 
&c.  V.  Bartlett,  10  Gray,  384. 

A  delay  of  more  than  three  years  to 
pay  instalments  of  an  agreed  price  for 
land,  after  a  refusal  to  give  any  further 
time,  will  forfeit  all  claim  to  the  perform- 
ance of  the  contract.  Fuller  v.  Hovey,  2 
Allen,  324. 

The  plaintiff  buys  pine  lands  of  the 
defendant  in  October,  1856,  and  pays  the 
first  instalment.  §3,800  to  be  paid  in 
three  annual  payments.  The  plaintiff 
sells  §1,200  worth  of  timber,  l)ut,  the  land 
becoming  unsaleable,  neglects  to  pay  as 
agreed.  In  1862  the  defendant  writes, 
that  the  contract  was  long  since  forfeited. 
Till  then,  he  had  paid  the  taxes.  In 
1863,  the  defendant  sells  the  land.  The 
plaintifi' notifies  the  vendees  that  he  claims 
it.  The  vendees  go  on  the  land,  and 
lumber  one  season.  The  lands  increase 
in  value  greatlj'.  In  1865,  the  plaintiff 
files  a  bill  for  specific  performance.  Bill 
dismissed.  Smith  v.  Lawrence,  15  IMich. 
400. 

"Possession,"  to  be  given,  according 
to  the  terms  of  the  contract,  by  a  certain 
day,  involves  a  good  title  shown.  This 
is  the  construction  both  in  equity  and  at 
law,  though  equity  will  relieve,  in  refer- 
ence to  time,  imless  there  is  something  in 
the  contract  itself,  the  nature  of  the  prop- 
erty, or  the  circumstances,  which  renders 
such  interference  inetiuitable.  The  Court 
dismissed  a  bill  for  specific  performance, 
where  the  defendant  agreed  to  purchase 
a  leasehold  house  for  his  own  residence, 
and   was   to    have   possession    by   a    day 


448 


LAW   OF    VENDORS   AND    PURCHASERS.     [CHAP.    XXVIII. 


defendant  treats  with  the  plaintiff  for  a  piece  of  land,  having  an 
intention  to  build  a  mill,  to  which  the  consent  of  the  corporation 
is  necessary ;  but  tlie  plaintiff  i-efuses  to  treat  on  condition,  and 
the  defendant  fails  in  obtaining  consent.  This  failure  in  his 
speculation  is  no  defence  against  a  bill  for  specific  performance.^ 
So,  in  an  agreement  for  the  purcliase  of  an  estate,  one  of  the 
stipulations  was,  that  the  vendor  should  be  tenant  from  year  to 
year  to  the  purcliaser.  Held,  the  inability  of  the  vendor  to  per- 
form this  stipulation,  by  reason  of  embarrassments,  of  which  the 

1  Adams  v.  "Weare,  1  Bro.  567. 


named,  but  the  plaintiff,  though  he  ten- 
dered possession,  failed  to  sliow  a  title  at 
the  time.  Tilley  v.  Thomas,  Law  Rep. 
(Eng.)  Eq.  January,  1868,  p.  60. 

But,  as  we  have  already  seen,  time 
is  often  held  not  to  be  essential.  See 
Morris  v.  Hoyt,  11  Midi.  9;  Stewart  v. 
Stokes,  33  Ala.  494 ;  Bonner  v.  Caldwell, 
8  Mich.  463 ;  Mathews  v.  Gilliss,  1  Clarke, 
242 ;  Reed  v.  Jones,  8  Wis.  392 ;  Ashmore 
i\  Evans,  3  Stoekt.  151 ;  Barron  v.  Eas- 
ton,  3  Clarke,  76 ;  Clark  v.  Sears,  ib.  10. 
Unless  clearly  made  so  by  the  terms  of 
the  contract  or  the  understanding  of  the 
parties.  Pennock  v.  Ela,  41  N.H.  189.  Or 
if  waived  by  the  parties.  Hull  v.  Sturdi- 
vant,  46  Maine,  34. 

A  delay  of  two  days  in  payment  is 
not  material,  where  tlie  parties  had  already 
waived  the  delay  of  one  day.  Durand  i". 
11  Wis.  151. 

So  where  a  vendor  extends  tlie  time 
of  payment  for  a  few  days,  and  afterwards, 
upon  the  representations  of  A.,  that  tlie 
vendee  does  not  intend  to  take  the  land, 
conveys  it  to  A.  at  an  advanced  price  ;  if 
B.  in  time  tenders  the  price  and  demands 
a  deed,  he  will  be  entitled  to  specific  per- 
formance. Dement  v.  Bonham,  26  111. 
158. 

Three  notes  had  been  given  ;  and 
three  months  after  the  last  one  was  due 
the  party  sought  to  pay  it;  but  the  holder 
of  the  notes  never  demanded  payment, 
nor,  when  the  suit  was  brougiit,  two  years 
after  the  first  and  one  year  after  tlie 
second  note  was  due,  offered  to  return 
the  notes.  Specific  performance  was  de- 
creed, it  not  appearing  tliat  the  respondent 
was  injured  by  the  delay.  Young  v. 
Daniels,  2  Clarke,  126. 

Where  time  is  not  of  the  essence  of  a 
contract,  and  tliere  has  been  no  inequi- 
table delay  on  tlie  part  of  the  vendor ;  he 
may  tender  a  deed  at  the  time  of  trial, 
or  have  relief  by  means  of  a  conditional 
verdict  or  judgment.  Townsend  v.  Lewis, 
35  Penn.  125. 


A  contract  for  the  sale  of  real  estate, 
after  reciting  the  terms  of  the  contract, 
provided  :  "  Tiiat  if  the  party  of  the 
second  part  [the  vendee]  shall  fail  to 
make  any  of  the  payments  pursuant  to 
this  agreement,  or  otherwise  break  the 
same,  then  the  said  party  of  the  first  part 
[the  vendor]  shall  be  at  liberty  to  con- 
sider the  same  forfeited  on  the  part  of  the 
party  of  the  second  part,  and  the  said 
party  of  the  first  part  shall  then  and  in 
sucli  case  have  the  right  to  enter  in  and 
upon  the  said  premises  in  a  quiet  and 
peaceable  manner."  Held,  the  parties 
liad  not  expressly  made  time  of  the  es- 
sence of  the  contract,  and  something  more 
than  mere  non-payment  by  the  vendee 
was  required  to  forfeit  the  contract. 
Armstrong  v.  Pierson,  5  Clarke,  317. 

In  such  a  case  some  positive  act,  which 
will  operate  as  a  notice  of  the  vendor's 
intention  to  rescind,  is  necessary,  after 
which  tlie  vendee  is  entitled  to  a  reason- 
able time  within  which  to  comply  with 
the  terms  of  the  agreement.     Ibid. 

A  suit  by  the  vendor  to  recover  pos- 
session of  the  land  will  ojierate  as  such 
notice,  but  it  will  have  no  greater  efficacy 
than  actual  notice  in  any  other  way.  Ibid. 

Notice  of  the  rescission  of  a  contract  to 
sell  real  estate,  however  given,  unless 
coupled  with  an  offer  to  place  the  vendee 
in  statu  quo,  is  insufficient  to  rescind  the 
contract,  and  terminate  his  rights  m  the 
property.     Ibid. 

Although  a  vendor,  who  has  given  a 
bond  for  title  upon  receipt  of  part  of 
the  purchase-money,  may  by  laches  and 
length  of  time  lose  his  right  to  enforce  a 
forfeiture  of  the  vendee's  claims  ;  it  does 
not  therefore  follow  tliat  the  vendee  is 
entitled  to  specific  performance.  Walker 
V.  Emerson,  20  Tex.  706. 

It  is  held  that  in  an  action  for  specific 
performance  the  limitation  is  the  same  as 
that  of  a  real  action.  Wright  v.  Leclaire, 
3  Clarke,  221. 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  449 

purchaser  must  have  had  some  notice,  was  no  bar  to  the  specific 
performance.^ 

17.  Specific  performance  will  undoubtedly  be  refused,  of  a  con- 
tract against  i^uhlic  polici/.^(^a')  But  this  ground,  in  order  to  be 
effectual,  must  be  clearly  established.  Thus  the  defendant,  having 
a  pre-emptive  right  to  certain  public  land,  but  being  unable  to 
obtain  a  title  from  the  land  commissioners,  as  the  land  might  be 
needed  for  public  purj)oscs,  entered  into  an  agreement  with  A.,  that 
A.  should  procure  a  title  for  him,  at  his  own  expense,  and  pay  half 
the  purchase-money,  for  which  the  defendant,  when  he  should 
receive  his  deed,  would  convey  to  him  half  the  lot.  A.  fulfilled  his 
contract,  and  a  deed  was  made  to  the  defendant.  Afterwards,  A. 
assigned  the  contract  to  the  plaintiff,  by  a  trust  deed  for  benefit  of 
creditors.  The  plaintiff  brings  a  bill  for  specific  performance. 
Held,  the  contract  was  not  against  public  policy,  but  should  be 
enforced.^  So  where  an  aged  person  bound  himself  to  dispose  of 
his  estate  by  will  in  a  certain  way,  in  consideration  of  certain 
provisions  for  his  support  for  life ;  held,  this  agreement  was  not 
contrary  to  any  rule  of  policy ;  and,  in  case  he  should  fail  to  make 
a  will,  equity  would  decree  a  conveyance,  and  a  jury  would  give 
damages  to  the  amount  of  the  value  of  the  property.'^ 

18.  A  contract  of  sale  will  not  be  enforced  by  specific  perform- 
ance, unless    founded    on    an   adequate    consider ation.^Qi)     Mere 

1  Lear  v.  Chouteau,  23  III.  39;   Lord  3  Sedgwick  u.  Stanton,  18  Barb.  473. 
V.  Stephens,  1  Y.  &  Coll.  'I'l'l.  4  Logan  v.  McGinnis,  12  Ponn.  27. 

2  Evans  v.  Kitirell,  33  Ala.  449.  5  Mead  v.  Eandolph,  8  Tex.  191. 

(a)  The  defendants,  a  railway,  agreed  nor  on  the  damage  caused  to  property  by 

Avitii  the  plaintiff",  a  land-owner,  to  execute  failure  of  a  sale;    therefore   the   specific 

certain  accommodation  works,  and,  having  performance  of  an  agreement  of  lioredita- 

made  the  road  at  a  level  which  rendered  ments,  where  the  consideration-money  is 

the  fulfilment  of  this  contract  impossible,  ^50,  is  not  too  small  a  matter  for  the  juris- 

executed  the  works  in  such  way  as  to  ob-  diction  of  the  Court.     Bennett  v.  Smith, 

struct  access  to  his  house.     The  road  hav-  10  Eng.  Law  &  Eq.  272. 
ing  been  opened,  the  plaintiff'  files  a  bill  So  the  nature  of  the  principal  consider- 

for  specific  performance,  and  also  moves  ation  is  immaterial,  if  the  contract  relate 

for  an  injunction,  which  motion  was  or-  to  land.     Thus  specific  performance  will 

dered  to  stand  over  upon  an   undertak-  be  decreed,  though  the  land  contracted  for 

ing  by  the  defendants  to  comply  with  any  is  chiefly  valuable  on  account  of  its  timber. 

direction    of    the     Court ;     after    which  Equity  adopts  this  principle,  not  because 

the  works  were  completed  and  the  road  the    land  is  fertile,  or  rich    in    minerals, 

opened.     Held,  as  a  change  of  the  level  but  because  it  is  land.  Kitchen  v.  Herring, 

would  interfere  with  the  public  safety  or  7  Ired.  Eq.  190. 

convenience,  specific  performance  should  A.  made  a  parol  contract  for  the  pur- 

not  be  decreed.     Raphael  v.  Thames,  &c.  cliase  of  land  from  B.,  for  which  he  paid 

Law  Rep.  (Eng.)  Eq.  June,  18GG,  p.  37.  by  delivering  a  horse,  and  also  a  bond  of 

{h)  It  is  said,  the  Court  cannot,  specu-  C,  which  he  caused  to  be  made  payable 

late  on  the  damages  which  a  jury  might  to  B.     C.  died  insolvent,   the   liond  not 

have  given  for  breach  of  an  agreement,  having  been  collected.    Held,  on  a  bill  for 

29 


450  LAW    OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXVIII. 

diflference  in  value,  though  considerahle,  is  not  of  itself  a  sufficient 
ground  for  refusing  a  specific  performance.^  So  it  has  been  held, 
that  inadequacy  of  price,  in  order  to  have  this  effect,  must  amount 
in  itself  to  conclusive  and  decisive  evidence  of  fraud.^  But  on  the 
other  hand  it  has  been  decided,  and  this  is  the  prevailing  doctrine, 
that,  though  mere  inadequacy  of  price  is  not,  of  itself,  sufficient  to 
set  aside  a  sale  of  land,  yet  it  is  sufficient  to  induce  the  Court 
to  refuse  to  decree  a  specific  performance,  and  to  leave  the  party  to 
his  remedy  at  law ;  especially  where  the  inadequacy  of  price  is  so 
great  (being  half  the  value),  as  to  give  to  the  contract  the  character 
of  unreasonableness,  inequality,  and  hardship.^  It  is  held  that  the 
consideration  must  be  explicit ;  and  not  parol ;  ^  and  valuable,  as  dis- 
tinguished from  good,^  And  more  especially  will  this  principle  be 
applied,  where  the  contract  is  not  in  its  terms  certain  and  explicit. 
Thus  A.  and  B.,  owning  adjoining  lands,  entered  into  an  agree- 
ment in  writing,  by  which  they  mutually  stipulated,  each  to  lay  out 
a  road  of  a  certain  width  through  his  own  land,  and  B.  agreed  to 
convey  to  A.  twenty  feet  of  land,  describing  it.  On  a  bill  in  chan- 
cery, brought  by  A.  against  B.,  for  specific  performance  of  B.'s 
agreement  to  convey  the  land ;  held,  it  did  not  appear,  that  the 
laying  out  of  the  road  was,  in  any  way,  the  inducement  to  such 
agreement  of  B.,  or  that  it  was  such  a  special  benefit  to  B.,  or 
injury  to  A.,  as  to  constitute  a  legal  consideration  ;  and  that  a 
Court  of  Equity  will  not  compel  specific  performance  of  an  agree- 
ment, though  fairly  made,  and  upon  such  a  legal  consideration  as 
would  be  sufficient  to  support  it  in  an  action  at  common  law,  if  the 
agreement  be  not  explicit,  or  the  consideration  inadequate. *^(a) 

1  Emery  y.  Wase,  8  Ves.  505.  20  Tex.  694;  Smith  v.  Wood,  12  AVis. 

2  Coles    V.    Trecothick,   0    Ves.    234;     382. 

Harrison  v.  Town,  17  Mis.  237.  4  Wright  v.  Weeks,  8  Bosw.  372. 

3  Seymour  v.  Delancey,  6  Johns.  Ch.  ^  Allen  v.  Davison,  16  Ind.  416. 
222;   3  Cow.  445;   Tomlinson   v.  York,         «  Dodd  z;.  Seymour,  21  Conn.  476. 

specific  performance  or  compensation,  to  relief  prayed  for.     Chambers  v.  Massey, 

which  B.  pleaded  the  Statute  of  Frauds,  7  Ired.  Eq.  286. 

that  A.   was   entitled   to   compensation;  (a)  It  is  held  that,  upon  a  bill  for  spe- 

that,  so  far  as  related  to  the  horse,  if  that  cific  performance,  inadequctcy  of  considera- 

had  been  the  only  subject  of  controversy,  tlon  is  no  defence,  unless  so  great  as  to 

A.  would  have  had  no  claim  to  relief,  as  raise  a  conclusive  presumption  of  fraud. 

he  could   have  had  complete  redress  at  Viele  v.  Troy,  &c.  21  Barb.   381.     It  is 

law,  upon  the  rescission  of  the  contract;  said  by  the  Court  (p.  38'J)  :  "When  an 

but,  as  he  had  no  legal  redress  as  to  the  agreement  in  relation  to  real  estate  is  in 

bond,  that  equity  would  entertain  juris-  its  nature  and  circumstances  unobjection- 

diction  of  that  matter  ;  and  thus,  taking  able,  and  the   contract  is  in  writing,  is 

jurisdiction  of  part  of  the  case,  would  take  certain  and  fair  in  all  its  parts,  is  for  an 

jurisdiction  of  the  whole,  and  grant  the  adequate   consideration,   and  capable   of 


CHAP.   XXVIII.] 


SPECIFIC    PERFORMANCE. 


451 


19.  On  the  other  hand  it  lias  been  held,  that  specific  performance 
of  an  extravagant  pnrchasc  might  be  decreed ;  ^  and  that  excess  of 
price  over  value,  if  the  contract  be  free  from  imposition,  is  not 

1  Keen  v.  Stuckely,  Gilb.  Eq.  155. 


being  performed,  it  is  as  mucli  a  matter  of 
course  for  a  Court  of  I*>quity  to  decree  a 
specific  performance,  as  for  a  Court  of  Law 
to  give  damages  for  a  breacli  of  it.  Indeed, 
the  cases  are  numerous  where  equity  has 
enforced  contracts  for  the  breach  of  whicli 
no  action  for  damages  could  be  maintained 
at  law.  The  case  of  Seymour  v.  Delan- 
cey,  3  Cow.  445,  is  in  point.  In  that  case 
the  vendor's  remedy  at  law  was  gone,  by 
reason  of  there  being  a  mortgage  on  the 
estate,  so  that  he  could  not  convey  a  good 
title  at  the  day  fixed  upon  by  the  contract, 
yet  a  bill  for  specific  performance  was 
sustained.  In  equity,  tlie  leading  inquiry 
is,  whether  in  conscience  the  contract  should 
be  enforced ;  and  mere  technical  objections 
that  would  defeat  an  action  at  law  for  dam- 
ages are  not  allowed  to  produce  inequita- 
ble and  oppressive  results." 

In  the  same  case  it  is  further  remarked 
(p.  394)  :  "  Whether  a  Court  of  Equity 
shall  decree  the  specific  performance  of 
an  agreement,  or  not,  is  a  matter  resting 
in  its  discretion  ;  but  this  is  a  sound  legal 
discretion.  It  will  not  lend  its  aid  to  en- 
force an  unconscientious  contract.  The 
case  presented  must  be  fair,  just,  and  rea- 
sonable ;  the  contract,  free  from  fraud, 
misrepresentation,  or  surprise ;  and  not 
hard,  unconscionable,  or  unequal.  It  must 
also  be  entered  into  upon  adequate  con- 
sideration ;  and  where  the  inadequacy  of 
price  in  a  contract  to  sell,  is  so  great  as  to 
be  conclusive  evidence  of  fraud,  as  where 
it  would  shock  the  moral  sense  of  an  in- 
different man,  a  Court  of  Equity  should 
not  carry  it  into  efl^ect.  But  inadequacy 
of  price  merely,  ^vithout  being  such  as  to 
prove  fraud  conclusively,  the  contract 
being  entered  into  deliberately  and  fair  in 
all  its  parts,  is  not  an  objection  to  its  be- 
ing executed.  The  consideration  to  be 
paid  for  the  land  was  not  definitely  fixed 
in  the  contract,  but  the  sum  submitted  to 
men  indifierently  chosen  by  the  parties. 
A  majority  of  tliose  men  fixed  the  price 
to  be  paid  for  tlie  land,  and  that  sum  is  to 
be  regarded  and  treated  as  the  considera- 
tion, as  though  it  were  named  in  the 
agreement.  It  seems  a  disproportionate 
compensation.  But  is  there  enough  in  the 
case  to  show  that  the  price  was  so  inade- 
quate as  to  shock  the  moral  sense,  and  be 
conclusive  evidence  of  fraud  1  We  may 
surmise,  from  the  disproportion  between 
the  value  of  the  whole  farm,  and  the  price 


fixed  as  the  consideration  for  the' small 
jKU't  in  acres  taken  for  tlie  jnirpo-ses  of  the 
road,  that  the  defendants  were  made  to 
pay  pretty  dearly  ;  but  the  price  does  not 
shock  the  moral  sense,  as  it  may  be  that 
that  i)art  of  the  farm  taken  was  worth  the 
sum  of  the  appraisal." 

An  antecedent  debt  of  the  husband 
is  not  a  sufficient  consideration  for  tlie 
wife's  agreement  to  convey.  Bayler  v. 
Commonwealth,  40  Penn.  37.  ]\lore  es- 
pecially, a  Court  of  Equity  will  not  en- 
force a  i/ratnitoiis  undertaking  on  the  part 
of  a  wife  to  subject  her  sei)arate  estate  to 
the  payment  of  her  husband's  debts.  In 
such  case,  the  legal  title  will  not  be  allowed 
to  iirevail  in  equity  over  the  equitable 
right ;  it  is  only  where  the  equities  are 
equal  that  the  law  prevails.  White's,  &c. 
3G  Penn.  134. 

P.  agreed  to  sell  lands  to  D.  for  four 
thousand  dollars,  and  assigned  the  agree- 
ment as  collateral  for  his  own  conti'act 
to  pay  one  thousand  dollars  as  stip- 
ulated damages  to  A.,  with  authority 
to  sell  the  same  at  auction  in  case  of 
breach.  S.  purchased  of  D.  part  of  the 
premises,  and  afterward  bought  for  one 
thousand  dollars  the  contract  assigned  to 
A.,  as  collateral,  and  then  brought  a  bill 
for  specific  performance  of  P.'s  contract, 
as  to  the  part  purchased  of  him.  Held, 
the  defendant  had  received  no  considera- 
tion, and  that  S.  had  no  equity  which 
entitled  him  to  a  conveyance.  Stone  v. 
Pratt,  25  111.  25. 

It  is  held  that  specific  performance 
may  be  decreed,  though  the  entire  con- 
sideration is  not  expressed.  And  the  part 
omitted  need  not  be  alleged  in  the  bill. 
Park  V.  Johnson,  4  Allen,  259. 

Specific  performance  of  an  exchange 
of  land  will  not  be  refused,  on  account  of 
the  inferior  value  of  the  land  which  the 
plaintiff"  agreed  to  convey  to  the  defend- 
ant, where  the  parties  have  fixed  their 
own  estimate  of  the  value  of  the  respective 
lands,  and  there  has  been  no  fraud,  and 
the  difference  in  value  does  not  appear  to 
have  been  unconscionable.     Ibid. 

A  father,  having  conveyed  his  entire 
estate  to  his  children,  on  their  stipulation 
to  support  anil  maintain  their  [parents 
conifortai)ly,  suitaiily  to  tlieir  condition, 
and  wherever  they  might  choose  to  re- 
side, had  a  decree  for  specific  performance 
in  his  fiivor,  though  the  conveyed  prop- 


452  LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.    XXVIII. 

of  itself  sufficient  to  prevent  such  decree.  But  still  it  is  an  ingre- 
dient which,  associated  with  others,  will  contribute  to  prevent  the 
interference  of  a  Court  of  Equity. ^  So  it  has  been  doubted,  whether 
it  be  consistent  with  the  rules  of  equity,  to  decree  performance  of 
so  extravagant  and  unreasonable  a  bargain,  as  a  sale  of  land  at 
forty  years'  purchase.^  And  it  has  been  held,  that,  where  an 
agreement  is  entered  into  for  the  purchase  of  an  estate,  at  a  price 
far  beyond  its  value,  though  without  any  circumstances  of  fraud  or 
surprise  ;  the  Court  will  not  decree  specific  performance,  but  on 
the  other  hand  will  not  rescind.^ 

20.  Equity  will  enforce  an  award  of  arbitrators  upon  a  contract 
of  sale  and  purchase.  Thus  the  vendor  and  purchaser  of  a  copy- 
hold estate  covenant,  for  themselves  and  their  representatives,  to 
fulfil  the  contract,  and  to  refer  the  question  of  value,  under  a  pen- 
alty. One  of  the  parties  dying,  his  representatives  cannot  annul 
the  decision  of  the  referee,  by  showing  an  error  in  his  estimate,  or 
compel  the  acceptance  of  the  penalty,  in  satisfaction  of  their  breach 
of  contract.^ 

21.  But  it  is  held,  that,  according  to  the  Roma;n  and  the  English 
law,  as  administered  both  in  Courts  of  Law  and  Equity,  a  fixed 
price  is  an  essential  ingredient  in  a  contract  of  sale.  A  contract, 
therefore,  that  does  not  settle  the  price,  is  valid  and  complete,  only 
when  and  if  the  party  to  whom  it  is  referred  shall  fix  it ;  and  is 
otherwise  totally  inoperative.^  So  a  decree  was  made  for  specific 
performance  of  an  agreement  to  grant  a  lease,  rejecting  one  of  the 
terms ;  viz.,  for  such  conditions,  &c.,  as  shall  be  judged  proper  by 
(a  third  person  named)  ;  and  substituting  a  reference  to  the  Master ; 

1  Best  V.  Stow,  2  Sandf.  Ch.  298.  4  Belchier  v.   Reynolds,   2   Keny.  2d 

2  Lewis  V.  Lechmere,  10  Mod.  503.  part,  91. 

3  Day  V.  Newman,  2  Cox,  77.  ^  Milnes  v.  Grey,  14  Ves.  400 ;  Gour- 

lay  V.  Somerset,  19  Ves.  429. 

erty  was  wholly  inadequate  to  such  sup-  decreed.      Watson    v.    Mahan,    20    Ind. 

port.     Chubb  v.  Peckham,  2  Beasl.  207.  223. 

An  old  bachelor,  in  poor  health,  prom-  A  father  verbally  agreed  with  his  son, 

ised  the  plaintiffs,  a  physician  and  wife,  that,  if  the  latter  would  remain   on  his 

that,  if  they  would  live  in  a  certain  house,  farm  and  maintain  him  during  his  life,  the 

and  give  himself  and  his  nurse  lodging  farm  should  go  to  him  (tlie  son)  on  his 

therein,  and  board,  and  would  take  care  death.     The  son  did  this  for  fifteen  years, 

of  him  till  his  death,  he  would  convey  the  at  the  end  of  which  the  father,  becoming 

house  to  the  wife.   The  plaintiffs  accepted  displeased  with  him,  conveyed  the  farm 

the   ofler,    spent    i?200   in   repairing   the  to  his  two  other  sons,  in  consideration  of 

house,  and  fulfilled  their  agreement  till  maintenance  for  life.    Held,  the  agreement 

his  death,  nine  months  afterwards ;  they  was  not  gratuitous,  but  was  valid  at  law, 

then  sued  his  heirs  for  specific  perform-  and  part-performance  took  the  case  out  of 

ance.     Held,  the  consideration  was  ade-  the  Statute  of  Frauds.     Davison  v.  Davi- 

quate,  and  specific  performance  should  be  son,  2  Beasl.  246. 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  453 

the  agency  of  such  person  not  being  of  the  essence  of  tlie  contract.^ 
So  execution  of  a  contract  was  refused  ;  the  vahiation  of  an  arbi- 
trator, who  settled  the  price,  not  being  properly  and  discreetly 
made.^  So,  though  referees  may  take  the  opinion  of  a  third  person 
as  evidence,  they  cannot  previously  agree  to  be  bound  by  it.^  So, 
though  a  person  may  agree  to  sell  at  a  price  to  be  fixed  by  arbitra- 
tion, and  the  award  can  be  impeached  only  upon  the  grounds 
affecting  all  awards,  as  fraud  or  gross  mistake ;  yet,  upon  such  an 
agreement,  where  some  of  the  persons  to  be  bound  were  married 
women,  of  whom  also  one  had  not  executed,  the  Court  refused  a 
specific  performance,  and  dismissed  the  bill ;  leaving  the  plaintiff 
to  law.  Upon  an  appeal,  the  decree  was  affirmed,  on  the  ground 
that  the  evidence  did  not  prove  satisfactorily,  as  it  ouglit,  especially 
in  the  case  of  married  women,  that  the  valuation  was  made  with 
due  attention  and  care.*  So  where  two  surveyors,  who,  it  had  been 
agreed,  should  fix  the  price  of  an  estate,  stated  in  their  valuation 
the  sum  to  be  paid  and  the  quantity  of  land,  and  that,  if  it  proved 
to  be  less,  either  X84  or  X42  should  be  deducted,  according  to  the 
parts  of  the  estate  in  which  the  deficiency  occurred,  but  did  not 
state  the  quantity  contained  in  each  part ;  held,  the  valuation  was 
uncertain,  and  a  specific  performance  could  not  be  enforced. ^ 

22.  Upon  an  agreement  for  sale,  according  to  the  valuation  of 
two  persons,  one  chosen  by  each  party,  or  -of  an  umpire,  to  be 
appointed  by  those  two  in  case  of  disagreement ;  a  bill  for  specific 
performance,  praying  that  tlie  Court  appoint  a  person  to  make  the 
valuation,  or  otherwise  ascertain  it,  was  dismissed. ^(a) 

1  Gourlay  v.  Somerset,  19  Ves.  429.  *  Emery  v.  Wase,  5  Ves.  846. 

2  Ibid.  5  Hopcraft  v.  Hickman,  2  Sim.  &  Stu. 

3  Hopcraft  v.  Hickman,  2  Sim.  &  Stu.     130. 

130.     See  Emery  v.  Wase,  5  Ves.  846.  ^  Milnes  v.  Grey,  14  Ves.  400. 

(a)  In  a  verj'  late  case  it  has  been  de-  taking  of  the  land,  and  an  agreement  to 
cided,  thougli  the  circumstances  were  said  submit  the  estimate  of  the  value  and  the 
to  try  the  princuple  to  the  utmost,  that,  damages  to  arbitrators.  The  bond  of  A. 
where  the  price  of  property  sold  was  to  be  provided,  that  he  should  execute  and  de- 
valued "  in  the  usual  vv.iy,"  by  two  valuers,  liver  to  B.  a  deed,  on  tender  of  the  amount 
and  after  their  appointment  one  of  the  par-  of  the  one-half  in  stock  of  C,  a  railro.id 
ties  refused  to  allow  his  valuer  to  proceed  ;  connected  with  E.,  at  par,  and  the  other  half 
equity  could  not  specifically  enforce  the  in  cash  or  in  such  stock,  at  his  option, 
contract.  Vickers  v.  Vickers,  Law  Kep.  and  in  all  respects  abide  by  and  perform 
(Eng.)  Eq.  Decemljer,  1867,  p.  528;  ace.  the  award;  and  the  bond  of  IJ.  provided, 
Milnes  v.  Gery,  14  Ves.  400  ;  Wilks  v.  that  tliey  should  pay  to  A.  the  amount  of 
Davis,  3  Meri.  507.  the  award,  in  the  manner  above  stated, 
After  the  taking  of  land  for  a  railroad,  and  in  all  respects  abide  hy  and  perform 
A.,  the  owner  of  the  land,  and  B.,  the  tiie  award.  The  arbitrators  made  and 
company,  mutually  entered  into' bonds,  publisheil  their  award;  and  B.  tendered 
each  to  the  other,  each  bond  reciting  the  performance,  and  requested  A.  to   elect 


454  LAW   OP  VENDORS   AND   PUECHASERS.    [CHAP.   XXVIII. 

23.  The  plaintiff  in  a  bill  for  specific  performance  must  show 
substantial  compliance  with  the  contract  on  his  own  part ;  ^  or  his 
own  readiness,  and  a  demand  on  the  other  party  uncomplied  witli.^ 
Thus  a  vendor,  seeking  specific  performance,  must,  if  required  by 
the  defendant,  exhibit  the  title  contracted  for.^  So  a  decree  for 
specific  performance  of  a  contract  to  purchase  was  refused,  in  con- 
sequence of  delay  and  a  defect  of  title.'*  So  it  is  said,  the  aid  of 
a  Court  of  Chancery  will  be  given  to  either  party  who  claims  specific 
performance  of  a  contract,  if  it  appear  that,  in  good  faith,  and  witliin 
the  proper  time,  he  has  performed  the  obligations  which  devolved 
upon  him.^  So  a  vendor  cannot  have  a  decree  for  specific  perform- 
ance, unless  unquestionably  able  to  give  a  title,  which  will  secure 
full  and  unembarrassed  enjoyment  of  the  property.^  More  espe- 
cially, where  the  complainant,  who  seeks  specific  performance  of  a 
sale,  has  not  performed  his  own  contract,  the  Court  will  not  decree 
specific  performance,  if  any  injury  has  resulted  to  the  defendant 
from  such  non-performance.'^  And  a  vendee's  objections  to  the  title 
need  not  be  confined  to  cases  of  a  doubtful  title ;  but  may  be 
extended  to  incumbrances  of  every  description,  which  may  embar- 
rass him  in  the  full  enjoyment  of  his  purchase.^(a) 

24.  A  decree  in  chancery,  declaring  the  Court's  opinion,  that  an 

1  Hoe  V.  Simmons,  1  Cal.  119 ;  Beck-         4  Watts  v.  Waddle,  6  Pet.  389. 
with  V.  Kouns,  6  B.  Mon.  222  ;  Garnett  v.         5  Ibid. 

Macon,  6  Call,  308 ;  M'Clure  v.  King,  15         6  st.  Mary's,  &c.  v.  Stockton,  4  Halst. 

La.  An.  220;  Pliillips  v.   Soule,  9  Gray,  Ch.  520  ;  Garnett  v.  Macon,  6  Call,  308. 
233  ;  Jones  v.  Alley,  4  Greene,  181 ;  Beli         "^  Eamsay  i-.  Brailsford,  2  Desaus.  582  ; 

V.  Thompson,  34  Ala.  633  ;  Satterfield  v.  Beckwith  v.  Kouns,  6  B.  Mon.  222. 
Keller,  14  La.  An.  606;  Earl  v.  Halsey,  »  Garnett  r.  Mason,  6  Call,  308  ;  Butler 

1  McCarter  (N.J.)  332.     See  p.  441,  n.  v.  O'Hear,  1  Desaus.  382;  Keed  v.  Noe, 

2  Beli  V.  Thompson,  34  Ala.  633.  9  Yerg.  283.     See  p.  456,  n. 

3  Tomlin  v.  M'Chord,  5  J.  J.  Marsh. 
136. 

the  method  of  payment,  which  he  declined  title  to  one-half  of  the  minerals  discov- 

then  to  do.     He  prepared  no  deed  and  ered,  and  the  lessees  permitted  other  per- 

made  no   election,  and   did   not  request  sons  (claiming  a  riglit)  to  make  explora- 

performance   for  many  years,  and   then  tions  and  discoveries,  wliicli  added  greatly 

brought  an  action  upon  the  bond.     Held,  to  the  value  of  the  property,  without  of- 

the  bonds  were  mutual  and  dependent,  fering  to  assist,  it  not  appearing  that  they 

and  the  action  could  not  be  maintained  ;  were  ready  or  able  to  do  the  necessary 

although  B.  subsequently  to  their  tender  work;    held,  they    were   not  entitled  to 

cancelled  the  certificates  of  stock  tendered  specific  performance.     Cabe  v.  Dickson, 

to  him,  and,  in  pursuance  of  an  act  of  the  4  Jones,  Eq.  436. 

legislature  passed  after  the  award,  united  A  principal,  who  merely  ratifies  a  con- 

with  C.     Smith  v.  Boston,  &c.  6  Allen,  tract  made  by  his  agent,  is  not  thereby 

262.  entitled  to  specific  performance,  unless  he 

(a)  Where,  on  a  contract  to  lease   a  also  performs  the  undertaking  to  which 

mine   for   twelve  months,  in  order  that  the  agent  has  bound  him.     Haldeman  v. 

search  might  be  made  for  minerals,  it  was  Chambers,  19  Tex.  1. 
agreed  that  the  lessor  should  make  a  good 


CHAP.   XXVIII.]  SPECIFIC   PERFORMANCE.  455 

agreement  for  the  sale  of  land  should  be  specifically  performed  by 
both  the  parties,  and  directing  tlie  vendee  to  execute  a  mortgage  of 
tlie  same  land  to  secure  the  purchase-money,  is  to  be  understood  as 
requiring  the  vendor,  in  the  first  place,  to  make  a  title  to  him.^ 

25.  The  same  duty  is  exacted  from  a  purchaser,  as  from  a  ven- 
dor, in  performing  his  own  part  of  the  contract,  before  he  can 
maintain  a  bill  for  specific  performance.  Thus,  where  a  trustee's 
sale  is  made  for  cash,  the  purchaser,  unless  he  tenders  the  money 
in  reasonable  time,  cannot  demand  specific  performance  against  the 
debtor,  who  has  paid  the  debt  and  costs,  especially  if  tlie  purcbase 
was  obtained  through  the  inadvertence  of  the  debtor.^  So  specific 
performance  of  a  sale,  being  within  the  discretion  of  the  Court,  will 
not  be  enforced  against  a  subsequent  purchaser,  for  valuable  con- 
sideration, without  notice  ;  especially  in  favor  of  a  vendee,  who  has 
failed  to  comply  with  his  own  contract,  within  the  time  limited.  ^ 

26.  Questions  have  often  arisen  as  to  the  right  of  specific  per- 
formance, where  the  vendor  is  able  to  make  a  title  to  the  property 
only  in  jJ^rt.  Tbus,  where  an  entire  tract  of  land  was  sold,  and 
the  complainant,  the  vendor,  at  the  time  he  filed  his  bill,  had  no 
legal  title  to  a  part ;  held,  he  had  no  right  to  enforce  specific  per- 
formance.^ So  the  Court  will  not  decree  performance  of  a  sale, 
where  there  is  a  failure  of  title  to  an  undivided  portion  of  tlie  land, 
which  the  vendee  has  not  agreed  to  take  at  his  own  risk  ;  although, 
if  the  vendor  has  executed  a  conveyance,  with  warranty,  chancery 
will  not  rescind  the  sale,  but  leave  the  grantee  to  his  legal  remedy 
upon  the  covenants.^(a) 

27.  But  equity  will  compel  a  vendor  to  a  specific  performance  of 
a  contract  for  the  sale  of  land,  for  a  part  of  tbe  land,  where  he  has 
incapacitated  himself  from  conveying  the  whole.  And  where  the 
land  contracted  to  be  sold  was  held  in  common,  and  the  vendor, 

1  Mayo  V.  Purcell,  3  Munf.  243.  *  Reed  v.  Noe,  9  Yerg.  283. 

2  Heuer  v.  Rutkowski,  18  Mis.  216.  ^  Bates  v.  Delavan,  5  Paige,  300. 

3  Doar  V.  Gibbes,  1  Bai.  Eq.  371. 

(a)  In  case  of  a  contract  to  purchase  a  party  wlio  had  received   tlie   notes   as 

lots,  to  two  of  whicli  a  title  could  not  be  collateral  surrendered  them  on  jtayment 

made,  and  in  others  there  had  been  a  de-  of  a  much  less  sum  than  was  due  upon 

terioration  in  value  ;  if  the  value  of  the  them.     Daniel  v.  Hill,  23  Tex.  571. 
remainin<^  lots  is  not  affected  by  that  de-  It  is  said,  tlie  power  of  Courts  of  Equi- 

terioration,  a  specific  performance  shrdl  be  ty  to  enforce  partial  i)erforniance  is  to  be 

decreed  as  to  all  but  two.     Poole  v.  Slier-  exercised  with  great  caution  in  this  coun- 

gold,  2  Bro.  118.  try,  where  the  value  of  real  estate  is  so 

A  vendee,  entitled  to  a  deed  on  pay-  fluctuating,  lest   it   be  an  instrument   of 

ment  of  notes  for  the  i)rice,  cannot  claim  injustice  to  vendors.     Mills  v.  Van  Voor- 

specific  performance,  upon  the  ground  that  hies,  20  N.  Y.  (0  Smith),  412. 


456 


LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.    XXVIII. 


after  the  agreement,  divided  with  the  other  tenants  in  common,  and 
executed  a  deed  of  partition  ;  it  was  held,  that  the  partition  was  no 
objection  to  a  specific  performance,  if  the  party  was  capable  of  per- 
forming the  whole  ;  but  that  there  is  a  distinction  in  this  respect, 
between  the  case  where  the  vendee  seeks  to  compel  the  vendor  to  a 
specific  performance,  and  where  the  vendor  resorts  to  equity  to 
compel  a  specific  performance  on  the  part  of  the  vendee.  But  a 
conveyance  for  a  valuable  consideration,  made  bond  fide  to  a  third 
person,  without  notice  of  the  previous  contract  of  sale,  before  it  has 
been  carried  into  execution,  will  transfer  the  legal  title  to  such 
third  person. 1 

28.  Upon  a  bill  for  specific  performance,  if  the  vendor's  title  to 
a  part  of  the  land  sold  is  doubtful,  the  Court  cannot  compel  him 
to  make  good  that  part,  by  a  conveyance  of  land  out  of  the  same 
survey,  to  which  he  has  an  undoubted  title ;  but  will  give  a  com- 
pensation in  money.  In  such  case,  the  vendor  having  acted  in 
good  faith  in  the  sale,  the  measure  of  compensation  is  the  price 
given,  with  interest,  not  the  present  value  of  the  land.2(a) 

1  Waters  v.  Travis,  9  Johns.  450.  v.  Smith,  1  Head,  251 ;  Wright  v.  Young, 

2  Kelly  V.  Bradford,  3  Bibb,  317.     See    6  Wis.  127. 
Bell  V.  Thompson,  84  Ala.  633;  Collins 


(a)  It  is  the  general  rule,  as  we  have 
already  seen  (chap.  13),  that  specific  per- 
formance   of  a   contract   for   the  sale  of 
land  (more  especially  with  warranty)  will 
not  be  enforced,  unless  the  vendor  can 
make  the  vendee  a  good  marketable  and 
indefeasible   title.     Starnes  v.   Allison,   2 
Head,  221;  Collins  v.  Smith,  1  Head,  251. 
As  where  the  point  on  which  it  depends 
is  too  doubtful  to  be  settled  without  haz- 
ard of  litigation.     Luckett  v.  Williamson, 
31  Mis.  54 ;   Richmond  v.  Gray,  3  Allen, 
25 ;  1  Head,  251 ;  Nicol  v.  Carr,  35  Penn. 
381.     Or  unless  it  is  so  free  from  difficul- 
ty, as  to  law  and  fact,  that,  on  a  resale, 
an  unwilling  purchaser  shall  be  unal>le  to 
raise  any  question,  which  may  appear  to 
a  judge  sitting  in  equity  so  doubtful,  that 
a  title  involving  it  ought  not  to  be  en- 
forced.    35  Penn.  381.     More  especially, 
if  the  vendee  has  shown  an  intention  to 
rescind  the  contract,  and  if,  pending  the 
defect  in  title  which  might  subsequentlj' 
have  been  perfected,  the  property  has  de- 
preciated greatly.     MuUin  v.  Bloomer,  11 
Iowa,  360.      Or  if  the  vendor  could  not 
make  a  good  title  when  he  was  to  deliver 
a  deed,  or  for  more  than  six  months  after 
the  vendee  declined  to  accept  a  deed  on 
account  of  a  defect  in  the  title ;  although 


lie  may  be  able  to  do  so  at  the  time  when 
the  decree  is  sought  for,  or  the  bill  filed. 
3  Allen,  25.  Even  though  the  purchaser 
enters  into  possession  by  consent  of  the 
vendor,  and  makes  changes  b}'  removing 
a  cellar  wall,  cutting  trees,  and  exercising 
other  acts  of  ownership,  before  delivery 
of  a  deed ;  if  he  abandons  the  possession 
as  soon  as  he  learns  of  the  defect.     Ibid. 

A  vendee,  complainant  in  a  bill  for  per- 
formance, may  refuse  payment,  until  the 
vendor  cause  those  who  have  the  right, 
and  who  are  bound  to  him,  or  through 
him  to  the  vendee,  to  make  proper  assur- 
ances. And  the  vendee  may  enforce 
specific  performance  against  him  and  his 
obligor.  Shreck  v.  Pierce,  3  Clarke,  350. 
The  doctrine,  that  specific  performance 
may  be  enforced  where  the  vendor  is  able 
to  perfect  title  at  the  rendition  of  the  de- 
cree, does  not  excuse  a  party  from  dili- 
gence in  fulfilling  his  contract,  or  from 
tendering  a  deed  made  a  condition  of  a 
right  to  sue.  It  ai)plies,  where  a  deed 
has  been  tendered  and  possession  given, 
but  a  secret  defect  in  the  title,  previously 
unknown,  perhaps,  to  either  party,  is 
discovered.  Cook  v.  Bean,  17  Ind. 
504. 

Land  descended   to  A.,   B.,   and   C, 


CHAP,  XXVIII.] 


SPECIFIC    PERFORMANCE. 


457 


29.  Questions  have  also  arisen,  as  to  the  eiTect,  upon  the  claim 
for  specific  performance,  of  a  part-payment  of  the  purchase-money. 
Thus,  on  a  contract  between  the  plaintiff  and  defendant  for  the 


heirs  of  F.,  tlccoasecl,  ami  to  the  cliiklrcn 
of  a  fourth  cliihi,  D.,  deceased;  A.,  E., 
ami  C,  takiiifj  each  one-fourth,  aiul  D.'s 
ciiildren  takiu<j;alsoone-f()urtli  in  coninion. 
On  petition  for  partition,  D.'s  ciiildren 
appeared  by  C.  as  their  next  friend,  and 
at  the  sale,  C.  and  A.'s  hushand  boujiht 
in  the  land.  They  then  resold  tlie  land 
and  f^ave  bond  for  title.  On  a  bill  by  tlie 
purchaser  for  si)ecific  performance,  held, 
he  was  entitled  to  a  decree  for  the  three- 
fourths  of  wiiicii  the  title  was  clear,  and 
the  title  to  the  other  fourth  was  so  doubt- 
ful, that  he  was  not  bound  to  accept  it. 
Collins  V.  Smith,  1  Head,  251. 

It  is  sometimes  held,  that  a  vendor  who 
has  agreed  to  make  title  upon  payment 
must  tender  a  deed  and  demand  payment 
before  bringing  a  bill  for  performance. 
Klyce  V.  Broyles,  37  Miss.  524. 

So  the  vendor  must  tender  a  deed  exe- 
cuted by  himself  and  wife,  in  order  to 
put  the  vendee  in  default  ;  it  is  not 
enough  that  he  produced  an  executed 
deed,  and  witli  his  wife,  who  was  present, 
declared  liis  readiness  to  execute  it,  to- 
gether witii  her,  upon  receiving  the  price. 
M'AVillianis  v.  Long,  32  Barb.  194. 

But  other  cases  decide,  that  a  vendor, 
seeking  performance  and  foreclosm-e  of  a 
contract  containing  mutual  and  dependent 
covenants,  is  not  required  to  tender  a 
deed  before  filing  his  bill.  Kutherford  v. 
Haven,  11  Iowa,  587.  The  omission  only 
affects  costs.  Seeley  v.  Howard,  13  Wis. 
336. 

The  complainant,  in  a  bill  to  compel 
specific  performance  of  an  excham/c, 
notified  the  other  party  to  meet  him  and 
exchange  deeds  at  the  place  designated  ; 
himself  attended,  and  executed  a  deed 
which  he  left  for  delivery  to  the  other, 
who  had  not  appeared.  Held,  a  sufficient 
tender  and  re(iuest,  witliout  a  tender  to  the 
defendant  of  a  deed  to  be  executed  by  him. 
Daily  v.  Litchfield,  10  Mich.  29. 

To  a  bill  for  specific  performance  of  a 
contract  to  convey  land  to  two,  an  answer, 
alleging  tender  to  one,  and  demand  of  a 
I)ayment  of  the  consideration-note,  which 
was  refused  and  the  note  given  up,  the 
other  plaintiff" being  out  of  the  country',  is 
sufficient.     Lane  v.  Ready,  12  Ind.  475. 

In  reference  to  the  claim  of  specific 
performance  by  a  vcmhe ;  where  parties 
to  a  sale  agreed  that  "  the  money  should 
be  paid  at  the  confirmation  of  the  grant 
by  the  land  commissioners  ;  "  arid  the  con- 
firmation was  made  in  1855  and  the  offer 


of  compliance  in  1801:  held,  the  fact  of 
confirmation  was  not  one  of  whicli  tlie 
seller  could  be  deemed  to  have  any  pecu- 
liar information,  oiiligiiig  him  to  notify  the 
vendee  thereof;  but  it  was  the  duty  of  tlie 
vendee,  within  a  reasonable  time  after  the 
confirmation,  to  notify  the  vendor  of  his 
readiness  to  perform  the  contract,  and 
his  failure  to  do  so  for  five  or  six  years 
was  fatal  to  his  claim  for  specific  perform- 
ance. Weber  r.  Marshall,  19  Cal.  447. 
A  vendee  must  allege  not  only  (IchkuhI  of 
deed,  but  refusal.  Dodge  r.  Clark,  17  Cal. 
586.  See,  as  to  the  allegation  of  a  tender 
of  payment,  Duff  v.  Fisher,  15  Cal.  375. 

A.  executed  to  B.  an  assignment  of 
State  scrip  in  the  hands  of  C,  agreeing  to 
perfect  the  assignment  by  delivei;^'  of  the 
certificate  within  a  specified  tjme  ;  and  in 
consideration  thereof  B.  obligated  him- 
self, by  bond,  to  convey  to  A.  certain  real 
estate.  A.  fiiiled  to  make  the  delivery 
within  the  time,  and  long  after  B.  rescinded 
the  contract ;  and  thereupon  A.,  without 
having  tendered  or  delivered  the  certifi- 
cate, l)ut  notifying  C.  to  hold  it  until  the 
suit  should  be  decided,  sued  B.  for  specific 
performance.  Bill  dismissed.  Haldeman 
V.  Chambers,  19  Tex.  1. 

A  sale  of  land  at  forty  per  cent  above 
its  cost,  with  a  ci'edit  of  one  year,  is  not 
usurious ;  and  a  tender  of  the  original 
price,  with  six  per  cent  interest,  will  not 
sustain  an  action  for  specific  i)erformance. 
Casady  v.  Scallen,  15  Iowa,  93. 

The  failure  of  the  complainant,  to  ten- 
der the  purchase-money  and  demand  a 
deed,  and  to  i)ay  the  taxes,  before  the  in- 
stitution of  his  suit,  can  only  affect  the 
question  of  costs.  Morris  v.  Hovt,  11 
Mich.  9. 

Though  the  contract  is  to  give  a  deed 
on  request,  the  request  is  not  necessary, 
except  in  reference  to  costs.  Bruce  v. 
Tilson,  25.N.Y.  (11  Smith),  194. 

In  general,  a  vendee  seeking  specific 
performance  must  tender  or  bring  into 
court  the  i)urchase-nioney  ;  otherwise 
where  the  vendor  denies  the  obligation 
of  tiie  contract,  attempts  to  rescind  it, 
resumes  possession,  and  is  in  receipt  of 
the  rents  and  profits.  Brock  v.  llidv,  13 
Ohio,  N.s.  306. 

It  seems  that,  where  the  vendor  has 
convej'ed  to  a  thinl  person,  the  vendee, 
thougli  he  di<l  not  pay  at  the  day,  need 
not  tender  until  the  filing  of  the  bill,  for 
the  vendor  is  not  entitled  to  the  money, 
unless    the    second    purchaser    can    be 


458  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXVIII. 

sale  of  land,  payment  by  the  plaintiff  was  made  a  condition  prece- 
dent to  the  conveyance.  After  a  default,  the  defendant  accepted 
part  of  the  purchase-money,  but  the  plaintiff,  tiiough  repeatedly 
called  on,  refused  to  complete  the  payment.  The  defendant,  after 
giving  notice  of  his  intention  to  do  so,  sold  and  conveyed  the  land 
to  another ;  and  the  plaintiff,  afterwards,  tendered  the  money  due 
on  the  contract,  and  filed  a  bill  for  specific  performance.  Held,  a 
specific  performance  could  not  be  decreed ;  nor  could  the  bill  be 
sustained  for  compensation.^(rt) 

30.  We  have  already  had  occasion  (ch.  9),  in  connection  with 
the  Statute  of  Frauds,  to  consider  the  effect  of  part-performance  of 
a  verbal  contract  for  the  sale  and  purchase  of  lands,  in  taking 
such  contract  out  of  the  operation  of  the  statute.  This  effect  is 
chiefly  if  not  wholly  recognized  in  Courts  of  Equity,  and  by  apply- 
ing the  remedy  of  specific  performance.  The  subject  may  there- 
fore be  properly  further  considered  in  the  present  connection.  As 
has  been  seen,  in  case  of  possession  by  the  vendee,  valuable  im- 
provements made  by  him,  and  more  especially  if  the  price  has 
been  also  paid ;  specific  performance  will  be  decreed,  upon  the 
ground  that  to  refuse  performance  under  these  circumstances 
would  be  an  encouragement  to  fraud.^     Thus,  where  the  vendee 

1  Hatch  V.  Cobb,  4  Johns.  Ch.  559.  son  v.  M'Gruder,  15  Mis.  365;  Gilmore  v. 

2  Hawkms  v.  Hunt,  14  111.  42 ;  John-    Johnston,  14  Geo.  683. 

charged  with  notice,  so  that  the  vendor  Where  the  vendor  was  a  non-resident, 

can  give  a  good  title  upon  a  decree  against  and  an  attempt  to  tender  the  money  was 

him.     Brink  v.  Morton,  2  Clarke,  411.  made  at  the  office  of  one  who  had  been  his 

Specific    performance    may     be     had  agent  in  the  business,  but  whose  agency 

without  tender,  if  the  plaintiff,  the  pur-  hail  been  revoked,  and  who  was  not  at  the 

chaser,  offered  the  defendant  nearly  the  office  at  the  time,  and  no  other  agent  was 

sum  which  he  refused,  and  avers  a  readi-  known   to   the    vendee  ;    held   sufficient, 

ness   to   pay    whatever   the    Court    shall  Young  v.  Daniels,  2  Clarke,  126. 

order.     Irvin  v.  Gregory,  13  Gray,  215.  («)  Where   the   vendor   has   not  sub- 

A  tender  will,  if  not  complained  of  at  stantially  tlie  whole  interest  he  has  con- 

the  time,  be  held  good,  although  it  may  traeted   to   sell,    he   cannot    enforce    the 

not  cover  taxes,  or  a  partnerslijp  liability  contract  against  the  purchaser,  and  yet 

growing  out  of  a  nursery  concern  ;  these  the  purchaser  can  insist  on  having  all  the 

being  subordinate  to  the  sale.     Morgan  v.  vendor  can  convey,  with  compensation. 

Herrick,  21  111.  481.  Luckett  v.  Williamson,  31  Mis.  54. 

In  order  to  enforce  specific  perform-  Under  a  parol  contract,  the  purchaser 

ance,  the  purchaser  need  not  prepare  and  had   paid   part   of    the   money,    when   it 

tender  the  deed,  unless  so  agreed.      St.  appeared  that  the  land  was   mortgaged. 

Paul,  &c.  V.  Brown,  9  Min.  157  ;    Young  Held,  the  Court  would  not  enforce  specific 

V.  Daniels,  2  Clarke,  126.  performance   by    the   purchaser,   but    he 

But  where   the   vendee   is   by  agree-  should  have  back  the  money  paid  by  him. 

ment  to  pay  the  costs  of  a  conveyance,  Swihart  v.  Cline,  19  Ind.  264. 

he  should  tender  this  amount  witli  the  Compensation   is   allowed   where    the 

price,  and  demand  a   deed.      Wright  v.  wife  will  not  release  her  dower.     Wright 

LeClaire,  4  Greene,  420;  Vennum  v.  Bab-  v.  Young,  6  Wis.  127. 
cock,  13  Iowa,  194. 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  459 

had  possession  many  years  witli  the  vendor's  consent,  cnUivated 
and  l)uilt  upon  the  land,  without  objection ;  specific  performance 
was  decreed,  on  payment  of  the  balance  of  the  price. ^  So,  after 
part-performance,  specific  execution  was  decreed  of  a  contract  for 
exchange?  So  the  defendant  verbally  agreed  with  the  plaintiff, 
his  son,  that,  if  he  would  go  and  live  on  twenty-five  acres  of  wood- 
land, belonging  to  the  defendant,  and  clear  and  improve  such 
parts  of  it  as  the  defendant  should  direct,  for  tilling  and  meadow, 
the  defendant  would,  after  the  commencement  of  the  improve- 
ments, convey  to  him  in  fee.  The  plaintiff,  according  to  his  con- 
tract, accepted  the  proposal,  entered,  cleared  a  large  part  of  the 
tract,  built  on,  and  otherwise  improved  it,  and  continued  to  occupy 
for  sixteen  years.  Held,  the  plaintiff  was  entitled  to  specific  per- 
formance.'^ So  a  feme  covert,  being  entitled,  under  her  marriage 
settlement,  to  an  interest  in  the  settled  lands  for  her  separate  use 
for  life,  with  a  power  of  leasing  for  any  term  not  exceeding  twenty- 
one  years  in  possession,  leased  part  of  the  lands  for  fourteen  years 
to  D.,  and,  about  a  year  and  a  half  before  the  expiration  of  that 
lease,  agreed  with  D.  in  writing,  upon  the  expiration  of  the  lease, 
to  grant  D.  a  new  lease  upon  the  same  terms  and  for  the  same 
period.  The  lease  expired,  and  D.  continued  in  possession,  with- 
out taking  a  new  lease,  but  doing  acts  on  the  premises,  whicii 
were  solely  referable  to  the  written  undertaking.  Afterwards,  the 
feme  covert  died.  Held,  that  the  written  undertaking  was  a  valid 
execution  of  the  power ;  and  that  the  transaction  amounted  to  an 
agreement,  which  was  in  part  performed  by  the  continuance  of  the 
possession,  and  was  therefore  enforceable  in  a  Court  of  Equity.'^ 

31.  Upon  the  general  subject  of  part-performance,  the  principle 
is  laid  down,  that  although,  ordinarily,  a  purchaser  cannot  be  called 
on  for  his  money  until  he  has  a  title ;  yet,  where  he  is  let  into  pos- 
session upon  a  mutual  confidence  of  a  speedy  title,  and  the  difficulty 
is  a  mutual  surprise,  he  cannot  without  express  contract  retain  the 
possession,  withholding  the  money .^  After  such  part-performance, 
upon  a  bill  brought  by  the  vendor  for  specific  execution  of  the 
contract,  the  usual  course,  in  the  English  practice,  is  to  order 
payment  of  the  purchase-money  into  court. (^a}     Thus  a  vendee  in 

1  Diigan  u.  Cohuille,  8  Tex.  126.  *  Dowell  v.  Dew,  1  Y.  &  Coll.  345. 

2  Parrill  v.  McKiiiley,  9  Gratt.  1.  5  Gibson  v.  Clarke,  1  Ves.  &  B.  500. 
8  France  v.  France,  4  Halst.  Ch.  650. 

(a)   See  Payment  into  Cowt. 


460  LAW   OF   VENDORS   AND   PURCHASERS.     [CHAP.   XXVIII. 

possession,  objecting  to  the  title,  must  pay  in  tlie  purchase-money, 
or  give  up  possession. ^  So  a  purchaser,  who  had  been  three 
years  in  possession,  and  who  had  not  paid  the  ])urchase-money  on 
the  ground  that  a  good  title  had  not  been  made  out,  was  ordered 
either  to  pay  the  purchase-money  within  two  months,  or  to  give  up 
possession.^  And  slighter  acts  of  ownership  are  sufficient,  where 
they  have  been  committed  since  the  discovery  of  an  objection 
to  the  title.^  So  a  vendee  in  possession,  objecting  to  the  title, 
lias  been  ordered  to  pay  the  purchase-money  into  court,  merely  on 
motion.  So,  though  possession  was  not  admitted  by  the  answer, 
and  did  not  appear  by  the  pleadings,  but  was  only  shown  by  affi- 
davit.^ Thus  a  purchaser  of  a  coal-mine  was  ordered,  before  con- 
veyance, to  pay  into  court  instalments  due,  and  interest,  according 
to  the  contract,  being  in  possession  of  the  mine  and  working  it.^ 
So,  the  defendant  being  in  possession,  and  having  exercised  acts  of 
ownership,  payment  of  the  money  was  ordered,  though  an  infant 
heir  was  a  necessary  party  to  the  conveyance.^  So,  upon  a  bill 
for  specific  performance,  filed  by  a  vendor,  it  appeared  that  by  the 
agreement  for  sale  the  purchaser  was  to  pay  part  of  his  purchase- 
money  on  a  certain  day,  when  the  conveyance  was  to  be  executed, 
and  the  residue  secured  by  mortgage,  payable  at  not  less  than 
twelve  months  from  the  date  of  the  conveyance.  The  purchaser 
entered  into  possession  immediately,  but,  on  some  objections  to  the 
title,  refused  to  pay  his  purchase-money.  More  than  twelve 
months  having  elapsed  from  the  time  when  the  conveyance  ought 
to  have  been  executed,  the  defendant  was  on  motion  ordered  to 
pay  the  purchase-money  into  court."  So  a  purchaser  (a  trustee, 
acting  on  behalf  of  himself  and  others,  his  co-trustees,  and  of  the 
cestuis  que  trusts')  was  ordered  to  pay  the  purchase-money  into 
court,  the  agreement  having  been  entered  into  in  the  name  of 
himself  alone ;  upon  affidavits  that  the  plaintiffs  (the  vendors) 
had  no  notice  of  his  acting  for  others,  and  of  acts  of  ownership 
committed  since  possession  given  to  him  under  the  agreement ;  in 
opposition  to  the  answer,  alleging  notice  and  denying  any  acts  of 
ownership  by  himself  or  by  any  other  person,  to  his  knowledge.^ 

1  Smith  V.  Lloyd,  1  Madd.  83 ;   Clarke  Blackburn    v.   Stace,  6  Madd.  69 ;   Bur- 

V.  Wilson,  15  Ves.  317  ;  Dixon  v.  Astley,  roughs  v.  Oakley,  1  Mer.  52. 
1  Mer.  133.  ^  Buck  v.  Lodge,  18  Ves.  450. 

'^  Tindal  v.   Cobham,  2  My.    &   Kee.  ^  Bradshaw  v.  Bradshaw,  2  Mer.  492. 

385.  '  Younge  v.  Duncombe,  You.  275. 

3  Dixon  V.  Astley,  1  Mer.  133.  ^  Crutchley    v.  Jerninghara,    2    Mer. 

4  Boothby  v.  Walker,  1  Madd.  197 ;  502. 


CHAP.    XXVIII.]  SPECIFIC    PERFORMANCE.  461 

More  especially,  a  purchaser  in  possession,  who  has  made  al- 
terations and  improvements,  will  be  ordered  to  pay  the  purchase- 
money  into  court.^  So  acts  of  ownership,  amounting  to  waste, 
by  alteration  and  conversion  of  property,  arc  sufiicient  to  induce 
the  Court  to  order  payment  of  the  purchase-money  into  court, 
upon  the  ground  that  a  vendor  has  a  lien  on  the  estate  for  the 
amount,  and  might  have  filed  his  bill  to  restrain  such  acts ;  and, 
though  the  bill  contained  no  charge  of  such  acts,  the  order  was 
made  on  an  affidavit,  supplying  the  fact,  the  defendant  not  having 
answered,  nor  being  in  contempt,  nor  under  any  order  for  time.''^(a) 
32.  There  is,  however,  as  has  been  seen  (chap.  9),  a  class 
of  cases,  which  very  much  restrict  and  qualify  the  rules  above, 
laid  down,  as  to  the  effect  of  part-performance  upon  parol  con- 
tracts. It  is  held,  that  specific  performance  will  not  in  such  case 
be  decreed,  unless  such  a  change  has  been  therel)y  caused,  as 
makes  it  difficult  to  put  the  vendee  in  statu  quoJ^  So,  in  order 
to  enforce  specific  performance,  the  contract  must  be  clear,  definite, 
and  unequivocal,  and  be  proved  as  alleged,  by  competent  evidence, 
and  the  acts  of  part-performance  must  also  be  clear  and  definite, 
and  apply  exclusively  to  such  contract.*  Thus,  in  case  of  an 
alleged  parol  contract  of  sale,  evidence  was  offered,  on  one  side,  of 
possession,  and  of  the  declaration  of  the  former  owner,  under 
whom  both  parties  claimed,  that  he  had  made  such  a  contract,  and, 
on  the  other,  that  the  party  in  possession  had  said,  he  "  only 
had  the  use  of  the  land."  Held,  the  evidence  was  too  uncertain 
to  authorize  a  decree  for  specific  performance.^     So  it  has  been 

1  Bramley  v.  Teal,  3  Madd.  219.  *  Mundorff   v.    Howard,   4   I\Id.   459  ; 

2  Cutler  V.  Simons,  2  Mer.  103.  Charnley  v.  Ilansbury,  13  Tenn.  IG. 

3  Dugan  V.  Cohuille,  8  Tex.  126.  ^  Rankin  v.  Simpson,  19  Tenn.  471. 

(a)  Bill  for  specific   performance  of  a  larly  paid  until  1822,  when  it  was  with- 

sale   of    land   in    Cincinnati.     The   com-  held.     In  1822,  the  vendor  brought  eject- 

plainant  had  purchased  the  lot,  and  had  ment    for    the    property,    and    obtained 

paid,  according  to  the  contract,  the  pro-  possession  in  1824.    In  1819,  the  purchaser 

portion  of  the  purchase-money  payable  to  was  informed   that  one  C.  and  his   wife 

the  defendant.     By  the  contract,  a  deed  had  a  claim  on  tlie  lot,  whicli  was  deemed 

with  general  warranty  was  to  have  been  valid  by  counsel ;  and  in  1823  a  suit  for 

given  by  the  vendor  within  three  months,  recovery  of  tlie  lot  was  instituted  by  C. 

and  a  mortgage  for  the  balance  of  the  and   wife   against   the    complainant,    the 

purchase-money    executed    by   the    pur-  defendant,  and  others,  wliich  was  ])cnding 

chaser.      This  deed  was  never  given  or  tintil  after  1829.     In   1825,  this  l)ill  was 

offered.     The  purchaser  took  possession  fileil,  claiming  a  conveyance  umler  tlie 

of  the  lot,  built  on  it,  and  sold  a  part  of  contract  of  1814,  on  payment  of  the  bal- 

it.     A  subsequent  agreement  was  made  ance  of  the  purcliase-money  and  interest, 

with  the  vendor,  as  to  the  rate  of  interest  The  Circuit  Court  decreed  a  conve^vance ; 

to  be  paid  on  the  balance  of  the  purcliase-  and  the  decree  was  atlirmed  by  tlie  Su- 

money.    Tlie  purchase  was  made  in  1814,  preme  Court.     Taylor  v.  Longworthy,  14 

and  tlie  interest  as  agreed  upon  was  regu-  Pet.  173. 


462  LAW    OF    VENDORS    AND    PURCHASERS.     [CHAP.    XXVIII. 

held,  that  equity  will  not  enforce  a  parol  gift  of  land  from  father 
to  son,  though  possession  has  been  taken,  either  as  against  the 
donor  or  his  heirs,  executors,  &c.^  So  specific  performance  of 
a  parol  sale,  proved  by  one  witness,  and  confirmed  by  taking 
possession  and  acts  of  ownership,  was  refused  ;  there  being  some 
inconsistencies  in  the  testimony  of  the  witness,  which,  with  other 
circumstances,  placed  the  terms  of  the  contract  in  doubt.^  So 
a  vendee  cannot  enforce  specific  performance,  by  showing  a  receipt 
for  part  of  the  price,  which  designates  the  land,  but  not  the  price 
or  other  terms  of  sale.^  So  specific  performance  will  not  be 
decreed  of  a  parol  contract,  made  by  husband  and  wife,  for  the 
sale  of  the  wife's  estate,  where  a  deed  has  been  executed  by  both, 
if  the  wife  die  before  the  deed  be  delivered,  or  the  estate  taken 
possession  of  by  the  vendee,  or  the  purchase-money  paid.''^  So,  in 
case  of  an  oral  agreement  for  the  sale  of  land,  the  parties  went 
together  to  an  attorney  and  had  a  deed  drawn,  the  grantor  signed 
it,  the  grantee  paid  part  of  the  consideration,  and,  after  both 
parties  had  examined  the  deed  and  expressed  themselves  satisfied 
with  the  form,  the  grantor  took  it  for  the  purpose  of  procuring 
a  release  of  dower.  Held,  as  there  had  been  no  delivery,  the 
deed  was  invalid  as  such,  and  could  not  for  the  same  reason 
be  enforced  as  an  agreement  in  writing.-^(a) 

1  Pinckard  v.  Pinckard,  23  Ala.  649.  *  Leland's  Appeal,  13  Penn.  84. 

2  Reynolds  v.  Waring,  You.  346.  5  Parker  v.  Parker,  1  Gray,  409. 

3  Soles  V.  Hickman,  20  Penn.  180. 

(a)  Many  cases  are  found  in  the  books,  money,  and  was  let  into  possession,  hut 

not  arising  from  a  claim  for  specific  per-  the  vendor  had  not  executed  any  convey- 

formance,  in  which  the  same  restrictions  ance ;    held,  a  mere   tenancy  at  will   in 

have   been    recognized,   upon    the    effect  the  former,  and  the  latter,  having  made 

of  part-performance    of   parol   contracts,  a  demand  of  possession,  to  determine  the 

Thus  the  defendant  had  entered  into  an  tenancy,  might  recover  the  lands  by  eject- 

agreement  for  sale  of  his  estate,  and  had  ment.     Doe  v.  Miller,  5  Carr.  &  Payne, 

received    part    of    his    purchase-money  ;  595.     So  a  parolagreement,  made  by  the 

after  which  an  extent  issued  against  him.  owner  of  land  with  an  owner  of  adjacent 

Held,  as  he  had  not  executed  any  convey-  land,  to  straighten  the  line  by  the  removal 

ance,  the  fee  was  in  him,  and  the  agree-  of  an  old  crooked  fence  therefrom,  and  the 

ment  had  no  operation  against  the  extent,  erection  of  a  new  and  straight  fence  in  its 

Eex  V.  Snow,  1  Price,  220,  n.    So,  where  stead,  may  be  revoked  at  any  time  before 

a  party  takes  possession  of  land,  under  an  such  new  fence  shall  be  completed  ;  and, 

alleged  parol  agreement  to  convey,  and  if  the  adjacent  owner  persists  in  erecting 

afterwards  attorns  to  the  vendor  by  tak-  such    new  fence,  after   having  notice   to 

ing  a  written  lease ;  he  is  held  to  occupy  desist,  he  will  be  liable  to  an  action  of 

under  the  lease,  and  forfeits  his  rights  by  trespass,  and  cannot  sustain  a  plea  of  libe- 

virtue  of  possession  under  the  agreement;  rum  ieneinentum,  by  any  parol  admissions, 

even  though  the  object  of  the  lease  was  or   other  parol   evidence,   that    the   true 

to  protect  the  property  of  the   party  in  boundary  line  was  always  understood  to 

possession  from  his  creditors.     Rankin  v.  be  a  straight  one.     Davis  v.  Townsend, 

Simpson,    19   Penn.  471.       So,    where   a  10  Barb.  333. 
purchaser  had  jiaid  part  of  the  purchase-         And  the  effect  of  mere  possession,  as  a 


CHAP.    XXVIII.] 


SPECIFIC   PERFORMANCE. 


4G3 


33.  Although,  in  general,  as  has  V)oen  seen,  a  purcliaser  shall 
not  retain  possession  of  the  estate  and  also  keep  his  ])urchase- 
money ;  yet,  where  he  is  willing  to  give  wp  possession,  and  it  is  a 
question  whether  there  is  or  not  a  subsisting  contract,  chancery 
will  not  order  payment  of  the  purchase-money  into  court.^  So  it 
has  been  held,  that  a  vendor,  permitting  the  vendee  to  take  posses- 
sion before  completion  of  the  title,  without  any  stipulation  as  to 

1  Morgan  v.  Shaw,  2  Mer.  138. 


waiver  of  any  objections  wliicli  might 
otlierwise  be  made  to  the  entbrcement  of 
a  contract,  has  been  in  lil<e  manner  re- 
stricted witii  reference  to  subjects  not 
specially  connected  with  real  estate.  Thus 
it  is  iield,  that  the  purchaser  of  a  sliare  in 
a  copartnership  business  does  not  waive 
objections  to  the  title,  by  taking  posses- 
sion of  the  property  and  acting  as  a  part- 
ner, when  the  contract  stipulates  that  fi 
good  title  shall  be  made  by  a  specified 
future  day,  and  it  appears  to  have  been 
the  intention  of  the  parties,  that  the  pur- 
chaser should  immediately,  and  before 
that  day,  have  the  possession.  In  this 
case,  the  vendor  tiled  a  bill  against  the 
purchaser,  who  had  taken  possession, 
charging  that  he  had  grossly  mismanaged 
the  property  and  destroyed  its  value,  and 
praying  that  he  might  be  declared  to  have 
accepted- the  title,  and  decreed  to  perform 
the  contract  specifically.  Held,  the  title 
had  not  been  accepted,  and,  as  a  good 
title  was  not  shown,  a  specific  performance 
could  not  be  decreed.  Stevens  v.  Guppy, 
3  Russ.  171. 

Late  cases  substantially  affirm  the 
rules  as  to  the  effect  of  part-performance, 
which  have  been  heretofore  stated.  See 
Younger  v.  Welch,  22  Tex.  417.  The 
courts  can  enforce  performance  of  a  ver- 
bal contract  relating  to  lands  where  there 
has  been  a  part-performance.  Arguello  v. 
Edinger,  10  Cal.  150.  As  in  case  of 
entering  into  possession  and  making  val- 
uable improvements.  10  Cal.  150;  Nea- 
therly  v.  Kipley,  21  Tex.  434.  Or 
where  the  purchaser  has  paid  the  price, 
taken  possession,  and  held  it  for  nearly 
twenty  years.  Ramsey  v.  Liston,  25 
111.  114;  Stevens  v.  Wheeler,  ib.  300; 
Kitchens  v.  Nonques,  11  Cal.  28.  Or 
where  the  land  has  been  surveyed,  half 
the  price  paid,  and  possession  lield  sev- 
eral years.  Bomier  v.  Caldwell,  8  Mich. 
463.  Or  where  a  son  has  taken  possession, 
made  improvements,  and  held  possession 
for  some  years,  and  a  sale  by  the  son  has 
been  sanctioned  by  the  father.     Moore  v. 


Pierson,  6  Clarke,  279 ;  ace.  M'Cray  v. 
M'Cray,  30  Barb.  633. 

But  there  are  numerous  cases  where 
performance  has  been  refused.  See  Pat- 
terson r.Yeaton,  47  Elaine,  308. 

The  decree  is  a  matter  of  discretion 
and  not  of  right,  and  will  not  be  made 
for  part-performance,  unless  such  as  to 
make  the  agreement  reciprocal,  and  the 
right  to  enforce  it  mutual.  Smith  v.  Mc- 
Veigh, 3  Stockt.  23U. 

The  part-performance  must  be  an  act 
for  which  damages  might  be  recovered 
but  for  the  agreement.  Smith  v.  Fincii, 
8  Wis.  245.  And  the  contract  must  be 
certain.  Blanchard  v.  M'Dougal,  6  Wis. 
167.  And  the  act  of  part-execution  must 
have  clear  and  unequivocal  reference  to 
such  agreement.  Bunton  v.  Smith,  40  N. 
H.  352.  There  must  be  fraud.  Weber  r. 
Marshall,  19  Cal.  447.  Part-payment  is 
not  sufticient.'  Blanchard  v.  M'Dougal, 
6  Wis.  167 ;  Bees  v.  Chicago,  38  111.  322. 

The  giving  of  ]iromissory  notes,  the 
negotiation  of  which  is  enjoined  by  the 
maker,  is  no  part-performance.  It  would 
be  no  fraud,  injuring  the  party,  that  the 
agreement  should  not  be  performed,  as  he 
will  not  then  have  to  pay  the  notes.  Gil- 
bert V.  Trustees,  &c.  1  Beasl.  180. 

Specific  performance  is  refu.-:ed  where 
the  purchaser  had  been  a  h  nan/  before  the 
sale.  Blanchard  v.  JNl'Dougal,  6  Wis. 
167. 

In  order  to  render  improvements,  made 
by  a  tenant  continuing  in  possession,  of 
much  weight,  as  licaring  upon  his  right  to 
specific  performance  of  an  oral  contract 
for  a  new  lease ;  they  must  be  decidedly 
inconsistent  with  the  continuance  of  the 
old  relation.  Spalding  v.  Conzelman,  30 
Mis.  177. 

As  to  pleadinq  in  this  class  of  cases, 
see  Ilaight  v.  Cii'ilds,  34  Barb.  186. 

The  plaintiff  may  allege  a  verbal  con- 
tract to  convey,  and  part-performance.  Ar- 
guello V.  Edinger,  10  Cal.  150.  But  the 
farts  must  be  set  forth.  Bomier  v.  Cald- 
"wcU,  8  Mich.  463. 


464  LAW    OF   VENDOES   AND    PURCHASERS.     [CHAP.    XXVIII. 

the  purchase-money,  cannot,  on  motion,  have  the  purchase-money 
paid  into  court.^  So  a  motion  by  one  tenant  in  common,  who  had 
agreed  to  sell  to  the  other,  that  the  latter  should  pay  his  purchase- 
money  into  court,  was  refused ;  where  such  purchaser  had  been, 
before  and  at  the  time  of  the  purchase,  in  possession  of  the  whole, 
with  the  approbation  of  the  vendor.^  So  it  is  held,  that,  on  a  bill 
by  a  vendor  for  specific  performance,  the  Court  will  not,  before 
answer,  make  an  order  for  payment  of  the  purchase-money  by  the 
defendant  in  possession,  unless  under  special  circumstances,  such 
as  unreasonable  delay,  committing  acts  of  ownership  in  alteration 
of  the  property,  &g.^  So,  where  the  defendant  is  in  possession, 
not  under  the  agreement  to  purchase,  but  as  tenant  to  the  plaintiff, 
or  independently  of  the  agreement  at  the  time  of  the  purchase,  no 
such  order  will  be  made.'*  More  especially  on  motion,  and  where 
there  had  been  laches  on  the  part  of  the  vendor  in  completing  his 
title.5 

34.  According  to  the  bill,  a  parol  agreement  was  for  the  sale, 
and  possession  had  been  given,  of  ^e  acres.  According  to  the 
answer,  of  three  acres  only.  A  motion,  that  the  purchase-money 
for  the  five  acres,  or  otherwise  for  the  three  acres,  might  be 
brought  into  court,  was  refused.^(a) 

35.  With  regard  to  the  pleadings  and  general  course  of  practice 
in  bills  for  specific  performance ;  it  is  held  that,  if  the  defence 
depends  merely  on  want  of  title  in  the  vendor,  the  defendant 
ought  to  rest  on  his  answer,  and  not  file  a  cross  bill  to  have  the 
contract  delivered  up,  or  to  prevent  an  action ;  for  the  plaintiff 
cannot  succeed  at  law.'^ 

36.  If  a  defendant  pleads  the  Statute  of  Frauds  to  a  Ijill  for 
specific  performance,  he  must  by  answer  deny  the  agreement. 
His  admission  takes  it  out  of  the   statute.^    The  distinction  is 

1  Clarke  v.  Elliott,  1  Madd.  606.  6  Benson  v.  Glastonbury,  &c.  C.  Coop. 

'^  Freebody  v.  Perry,  Coop.  91.  350. 

3  Bonner  v.  Johnston,  1  Mer.  366.  "^  Hilton  v.  Barrow,  1  Ves.  284. 

4  Ibid.  8  Child  v.  Godolphin,  1  Dick.  39. 

5  Fox  V.  Birch,  1  Mer.  105. 

(a)  A  similar  principle  to  that  stated  plaintiff,  in  consequence  of  a  defect  in  the 
in  the  text  has  been  applied  to  a  claim  for  title,  failing-  in  his  attempt  to  compel  per- 
the  rents  and  profits  of  the  estate,  after  formance,  the  Court  refused  to  decree, 
occupation  by  the  purchaser;  tlie  vendor  under  the  prayer  for  general  relief,  an  ac- 
failing  to  make  a  good  title.  Thus,  on  a  count  of  rents  and  profits  against  the  pur- 
bill  by  a  vendor  for  specific  performance,  chaser,  though  he  had  stated  by  his 
where  the  purchaser  had  in  1814  entered  answer,  that  he  was  willing  to  pay  a  fair 
into  possession,  and,  pending  the  suit,  rent.  Williams  v.  Shaw,  3  Kuss.  178. 
continued  in  possession  until  1823 ;   the 


CHAP.    XXVIII.]  SPECIFIC   PERFORMANCE.  4G5 

made,  that,  in  a  bill  for  specific  performance  of  a  parol  agreement, 
the  defendant  may  rely  upon  the  Statute  of  Frauds,  though  he 
admits  the  agreement.  Otherwise,  in  case  of  such  admission, 
where  he  does  not  insist  upon  the  statute. ^(rt) 

37.  Though  a  defendant  in  a  bill  for  specific  performance  may 
have  a  decree  for  performance  according  to  his  construction,  if 
adopted  by  the  Court,  without  a  cross  bill ;  the  decision  being  not 
according  to  his  construction,  but  only  that  he  had  contracted 
under  mistake  created  by  the  plaintiff,  the  bill  was  merely  dis- 
missed.^ 

38.  In  case  of  a  bill  for  specific  performance  of  a  parol  agree- 
ment to  renew,  the  plaintiff  having  built  a  house ;  the  only  witness 
for  the  plaintiff  proved  an  agreement  different  from  that  in  the 
bill,  and  the  defendants  by  answer  stated  an  agreement  different 
from  both.  Held,  in  strictness,  the  bill  ought  to  be  dismissed ; 
but  specific  performance  was  decreed,  according  to  the  answers, 
with  costs  against  the  plaintiff.^ 

39.  Specific  execution  of  a  parol  agreement  for  a  lease  for  three 
lives,  proved  by  one  witness,  was  refused ;  the  answer  admitting 
an  agreement  for  one  life  only,  supported  by  the  testimony  of  one 
witness,  and  not  being  inconsistent  with  the  evidence  of  part- 
performance  given  by  the  plaintiff.^ 

40.  Where  the  agreement  was,  that  A.  and  B.  should  sell  and 
convey  to  C,  and  the  payment  was  made  to  A.,  who  had  no  legal 
title  ;  held,  B.  could  not  afterwards  object  to  such  payment,  but 

■  it  was  to  be  considered  as  made  to  B.^ 

41.  A.  conveyed  to  B.  a  tract  of  land,  reserving  "  the  house 
and  garden."  It  was  agreed  by  the  parties,  that  the  use  of  the 
"  door-yard  "  and  "  firewood  "  should  also  be  reserved  to  A.  for 
life;  but  this  latter  agreement  was  not  inserted.     B.,  on  discover- 

1  Dean  v.  Dean,  1  Stockt.  425.     (See         *  Lindsay  v.  Lynch,  2  Sclio.  &  Lef.  1. 
vol.  i.  p.  452.)  5  Waters  v.  Travis,  9  Jolins.  450,  464, 

2  Higginson  v.  Clowes,  15  Ves.  516.  465. 

3  Mortimer  v.  Orchard,  5  Ves.  243. 

(a)  The  plaintiff,  whilst  a  papist,  as-  assigned  to  him  for  the  purposes  charged, 

signed  an  advowson  to  tlie  defendant  for  Held,  the  plea  must  be  overruled,  being 

ninety-nine  years,  and,  having  conformed,  coupled   with   an   answer   wiiicii    admits 

brought  his  bill  for  a  re-assignment  of  the  facts.    Cottington  v.  Fletcher,  2  Atk.  155. 
term,   suggesting  that  he   had   only  as-         The  bill  prayed  execution  of  an  agree- 

signcd  it  in  trust  for  himself,  and  to  avoid  ment.     Tlie  defendant  denied  this  agree- 

the  penalties  of  3  Jac.  1,  and  1  W.  &  M.  ment,  but  admitted  a  different  one.     JJill 

The    defendant    pleaded   tlie    Statute   of  dismissed,  witliout  prejudice  to  a  I)iII  for 

Frauds  in  bar  to  the  discovery,  but  by  his  performance  of  the  admitted  agreement, 

answer  admitted  that  the  advowsoa  was  Lindsay  v.  Lynch,  2  Scho.  &  Lef.  1. 

30 


466  LAW   OF   VENDORS   AND   PURCHASERS.     [CHAP.   XXVIII. 

ing  the  omission,  offered  to  have  it  corrected,  which  offer  A.  re- 
fused, and  refused  to  fulfil  the  contract.  B.  filed  his  bill  for  a 
specific  execution  on  the  terms  of  the  original  agreement.  Held, 
that  the  case  was  not  within  the  Statute  of  Frauds,  B.  not  seeking 
a  decree  for  more  than  he  was  entitled  to  by  his  written  contract, 
but  less ;  and  that  a  conveyance  should  be  decreed  to  B.  on  pay- 
ment of  the  purchase-money  with  interest,  deducting  a  reasonable 
sum  for  the  profits  of  the  land  from  the  time  he  was  entitled  to 
possession  under  the  contract.^ 

42.  Where  the  Court,  on  a  bill  for  specific  performance,  passed 
a  decree,  ordering  execution  of  a  good  deed  with  the  usual  cove- 
nants of  seisin  and  warranty ;  held,  the  import  of  the  agreement 
was,  to  convey  the  land  by  deed,  so  as  effectually  to  transfer  an 
unincumbered  title  in  fee ;  that,  to  effect  such  transfer,  a  deed 
with  such  covenants  was  not  necessary ;  and,  as  the  decree  tran- 
scended the  agreement,  it  was  erroneous.^ 

43.  Specific  performance  was  decreed,  with  costs,  where  the 
defendant,  objecting  to  the  title,  had  been  served  with  notice  of  a 
prior  decision,  in  a  different  cause,  in  favor  of  the  same  title, 
against  a  similar  objection.^ 

44.  A  decree  for  specific  performance  against  a  vendor  is  not 
a  judicial  sale,  and  a  purchaser  from  either  party  is  chargeable 
with  notice  of  all  involved  in  the  suit,  as  a  purchaser  pendente 
lite.^  The  Court  say  (p.  232),  "  It  is  true,  as  a  general  rule,  that 
an  innocent  purchaser,  without  notice,  under  an  erroneous,  void- 
able, or  even  fraudulent  decree  or  judgment,  is  entitled  to  pro- 
tection, whether  collaterally  or  directly  attacked,  by  reversal  or 
writ  of  error.  This  is  a  sound  policy,  and  necessary  for  the  assur- 
ance and  protection  of  the  public ;  for  while  the  doctrine  of  caveat 
emiJtor  applies  to  these  sales  as  to  the  title  of  property,  the  risk 
should  not  be  increased  by  including  in  it  the  validity  of  the  decree 
or  judgment  against  all  allegations  of  error.  Of  course,  no  title 
can  be  derived  through  or  under  a  void  judgment  or  decree.  Is 
Illinois  College,  or  Cofiin  either,  such  a  purchaser  ?  And  had  they 
no  notice  ?  I  am  of  opinion  they  were  not.  The  bill  did  not  seek 
a  sale,  and  no  sale  was  decreed ;  no  sale  was  necessary  to  the  full 
execution  of  that  decree,  and  none  was  made  under  it.  It  was  a 
simple  transfer.     There  was  no  judicial  sale  or  purchase,  in  the 

1  Baxter  v.  Brand,  6  Dana,  296.  ^  Biscoe  v.  "VVilks,  3  Mer.  456. 

2  Dodd  V.  Seymour,  21  Conn.  476.  *  Gilman  v.  Hamilton,  16  111.  225. 


CHAP.    XXVIII.] 


SPECIFIC   PERFORMANCE. 


467 


sense  of  the  authorities  on  the  sul)jcct.  Where  a  bill  is  filed  for 
specific  performance  by  a  transfer  of  land  or  property  from  vendor 
to  vendee,  a  decree  for  that  purpose  is  not  a  judicial  sale  ;  it  is 
rather  a  specific  execution  of  a  former,  than  the  making  of  a  new 
sale ;  under  such  circumstances,  any  one  purchasing  from  either 
party  is  chargeable  with  notice  of  all  that  is  involved  in  the  suit, 
as  a  lis  j^^^^dens,  and  its  ultimate  effects  and  consequences  upon 
the  property  and  the  rights  and  powers  of  the  parties."  ^  (a) 


1  Ace.    Talbott   v.    Bell,    5   B.    Mon. 
323 ;  Clary  v.  Marshall,  4  Dana,  99 ;  Ue- 


Witt  V.  Foxworthy,  9  B.  Mon.  220 ;  :\Iaili- 
son  V.  Hopkins,  12,  (300. 


{(()  The  present  chapter  may  be  prop- 
erly closed  with  a  brief  statement  of  tlie 
practice  in  bills  for  specific  performance. 

In  reference  to  parties ;  generally,  only 
the  parties  to  an  agreement  are  necessary 
parties  to  a  bill  tor  its  specific  perform- 
ance.    Gibbs  V.  Blackwell,  37  111.  191. 

But  where  the  father  of  an  illegitimate 
child  agreed  with  the  father  of  the  child's 
mother,  to  convey  to  the  child  certain  real 
estate  ;  held,  a  suit  was  rightly  brought  in 
the  name  of  the  child,  the  contract  being 
for  his  benefit.  Alleu  v.  Davison,  16  Ind. 
416. 

In  reference  to  joint  parties ;  where  a 
purchaser  at  sherift^s  sale  sued  to  enforce 
a  conveyance  from  the  sheriff;  and  the 
former  owner  claimed  a  right  to  redeem  : 
held,  no  decision,  should  he  made,  until 
this  former  owner  had  been  joined  as  a 
defendant.     Crosby  v.  Davis,  9  Iowa,  98. 

Where,  since  the  commencement  of 
suit,  the  respondent  had  conveyed  to  a 
third  party,  and  a  decree  was  rendered  for 
performance,  without  bringing  in  the  third 
party  ;  held,  the  decree  should  be  reversed 
upon  .appeal.  Casady  v.  Scallen,  15  Iowa, 
93. 

Where  A.  contracts  to  convey  land  to 
B.  and  conveyance  is  actually  made  to  C, 
both  A.  and  C.  are  proper  parties  to  a  bill 
filed  by  B.  Daily  v.  Litchfield,  10  Mich. 
29. 

But  where  A.  makes  a  contract,  and 
therein  names  B.  as  his  attorney  to  carry 
out  its  provisions,  B.  is  not  a  necessary  or 
proper  party  in  a  suit  against  A.  Da- 
honey  V.  Hall,  20  Lid.  264. 

An  assignor  need  not  be  joined  with 
the  assignee.  Currier  v.  Howard,  14 
Gray,  511. 

Ou  a  contract  for  a  sale  of  land,  upon 
■which  the  nursery  business  was  to  be  car- 
ried on  by  the  parties  as  partners,  a  decree 
will  be  made  for  a  conveyance,  although 
there  may  be  arrears  due  under  the  nurse- 
ry agreement ;  and  so  also  if  taxes  have 


been  paid  by  a  cotenant ;  tlie  sale  not  be- 
ing made  to  depend  upon  such  conditions. 
Morgan  v.  Herrick,  21  111.  481. 

On  the  death  of  one  of  two  joint  OAvn- 
ers,  between  whom  a  contract  existed, 
that  neither  should  sell  witliout  giving  the 
other  the  refusal  of  the  property ;  e<{uity 
will  not  enforce  the  contract  specifically 
against  his  devisees.  Weisman  v.  Smith, 
6  Jones,  Eq.  124. 

Whether  such  a  contract  would  be  en- 
forced specifically  as  against  the  original 
parties,  is  doubted.     Ibid. 

Upon  a  purchase  from  joint  owners, 
and  a  bill  for  specific  performance  of  the 
entire  contract,  and  failure  to  recover  the 
whole  of  the  land,  because  the  contract 
was  not  binding  upon  some  of  the  owners  ; 
the  plaintiff  may  recover  the  portion 
owned  by  others.  Meek  v.  Walthall,  20 
Ark.  648. 

A  bill  lies  against  a  part  of  tenants  in 
common.  Hooker  v.  Pynchon,  8  Gray, 
550. 

As  to  specific  performance  after  tlte 
death  of  a  contracting  party,  see  Collins 
V.  Vandever,  1  Clarke,  573. 

A  petition  in  tlie  orphan's  court,  under 
the  (Penn.)  act  of  February  24,  1834,  is  the 
proceeding  expressly  provided,  for  enfor- 
cing performance  of  contracts  made  by  a 
decedent  for  the  sale  of  real  estate,  where 
he  dies  seised  or  possessed  thereof,  with- 
out having  made  any  sufficient  jjrovisiou 
for  performance  of  such  contract.  Weller 
V.  Weyand,  2  Grant,  103. 

The  heirs  of  one  deceased,  who  con- 
tracted to  purchase  lands,  are  the  proper 
plaintiffs  in  a  bill  to  enforce  specific  per- 
formance of  the  contract,  though  the  pur- 
chase-money was  held  in  trust.  The 
cestui  que  trust  need  not  be  joined.  Gibbs 
V.  Blackwell,  37  111.  191. 

As  to  a  suit  against  heirs,  see  Moore 
V.  Burrows,  34  Barb.  173. 

Specific  performance  of  an  agreement 
to  convey  will  be  enforced  against  heirs 


468 


LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.    XXVIII. 


upon  payment  to  the  administrator  or 
assignee.  Moore  v.  Burrows,  34  Barb. 
173. 

So,  it  seems,  where  the  estate  receives 
the  consideration-money,  or  a  part  of  it, 
for  property  which  the  agent  of  the  de- 
ceased had  before  his  death  contracted  to 
convey.     Travers  v.  Crane,  15  CaL  12. 

A.  having  a  pre-emption  right  to  land, 
and  being  unable  to  enter  it,  B.  agreed 
A'erbally  to  enter  it  in  liis  own  name,  and 
to  convey  it  to  A.,  upon  payment  of  fifty 
dollars  b}'  him,  within  one  year,  with  in- 
terest. A.  continued  in  possession  and 
improved  the  land,  and,  after  the  death  of 
B.,  paid  the  money  to  his  administrator. 
Held,  A.  was  entitled  to  specifijc  perform- 
ance of  the  contract.  Fisher  v.  Moolick, 
13  Wis.  321. 

An  agreement  for  the  support  and  care 
of  a  party,  promising  to  convey  the  house 
ill  which  the  promisor  lived  with  the 
promisee,  is  taken  out  of  the  Statute  of 
Frauds  by  performance  on  the  part  of  the 
latter  during  the  life  of  the  former,  and 
the  agreement  will  be  enforced  against 
the  heirs  of  the  promisor.  Watson  v.  Ma- 
ban,  20  Ind.  223. 

The  remedy  of  heirs,  where  the  obligee 
of  a  bond  to  make  title  had  not  paid  the 
purchase-money,  would  be  to  file  a  bill 
for  specific  performance.  White  v. 
Hooper,  6  Jones,  Eq.  1-52. 

Specific  performance  does  not  lie 
against  heirs  in  case  of  a  parol  gift,  unless 
there  be  clear  proof  of  an  executed  inten- 
tion to  give,  or  possession  and  improve- 
ments made  in  reliance  on  the  gift. 
Johnston  v.  Johnston,  19  Iowa,  74. 

Sect.  34  of  the  (111.)  conveyance  act, 
which  authorizes  the  executors,  adminis- 
ti'ators,  or  heirs  of  any  deceased  person 
who  shall  have  made  a  contract  in  writ- 
ing, for  the  conveyance  of  land,  to  apply 
to  a  Court  of  Chancery  for  a  decree  that 
the  conveyance  be  made,  applies  only 
where  the  purchase-money  has  been  fully 
l)aid.     Burger  v.  Potter,  32  111.  G6. 

But  chancery  will  entertain  a  bill  for 
the  twofold  purpose  of  enforcing  payment 
and  authorizing  a  conveyance.     Ibid. 

So  although  the  executor  or  adminis- 
trator has  a  remedy  at  law  to  compel  pay- 
ment ;  to  the  end  that  complete  justice 
may  be  done  to  all  the  parties ;  for  upon 
such  a  bill,  the  Court  can  decree  the  legal 
title  in  the  owner  of  the  equitable  title,  on 
his  paying  the  purchase-money  at  a  day 
to  be  named  ;  and,  on  a  failure  to  make 
the  payment,  the  interest  of  the  vendee  in 
the  premises  may  be  ordered  to  be  sold, 
and  an  execution  awarded  for  any  resi- 
due.    Ibid. 

An  action  lies  to  compel  an  adminis- 
trator to  convey,  without  a  tender  and  de- 


mand, as  the  administrator.could  not  have 
conveyed  without  the  direction  of  the 
Court,  and  the  demand  would  have  been 
in  vain.     Collins  v.  Vandever,  1  Clarke, 

Ola. 

In  a  bill  for  specific  performance  of  a 
sale  of  lands  by  D.  with  one  W.,  and  by 
W.  assigned  to  S.,  Avho  has  since  deceased  ; 
the  complaint  should  be  filed  by  the  heirs 
of  S.,  and  not  by  his  administrator.  House 
V.  Dexter,  9  Mich.  24G. 

In  a  suit  against  devisees  to  enforce 
a  contract  by  their  testator  for  a  convey- 
ance ;  the  executor  as  such,  who  was  also 
a  devisee,  was  not  a  necessary  party. 
Watson  V.  Mahan,  20  Ind.  223. 

Where  a  party  is  entitled  to  receive 
compensation,  for  personal  services  to  be 
rendered  by  him,  out  of  the  proceeds  of 
certain  lands  belonging  to  the  other  party, 
which  are  to  be  sold,  and  he  dies  before 
he  has  rendered  the  services ;  his  re^jre- 
sentatives  are  not  entitled  to  specific  per- 
formance, but,  it  seeins,  tliey  may  maintain 
an  action  at  law  against  such  other  party, 
if  by  his  fault  their  intestate  was  pre- 
vented from  performance.  Stow  v.  Rob- 
inson, 24  111.  532. 

An  agreement  of  a  religious  corporation 
for  a  sale  of  their  real  estate,  approved  by 
consent  of  the  Supreme  Court,  may  be 
enforced  by  a  decree  for  specific  perform- 
ance.    Bowen  v.  Irish,  &c.  6  Bosw.  245. 

Where  a  religious  corporation  have  by 
their  officers  made  such  contract,  and  ob- 
tained an  order  of  the  Supreme  Court, 
authorizing  it;  they  cannot  defend,  in 
a  suit  for  specific  performance,  on  the 
ground,  that  in  a  suit  subsequent  to  the 
contract,  brought  by  some  of  its  members 
against  the  corporation,  an  injunction  had 
been  issued,  restraining  the  corporation 
from  making  tlie  conveyance ;  if  the  par- 
ties seeking  specific  performance  were  not 
made  parties  to  the  injunction  suit,  and  the 
injunction  was  obtained  by  collusion.    lb. 

Specific  performance  may  be  had  of  a 
married  woman's  agreement  for  the  sale 
of  her  real  estate,  authorized  bv  (Mass.) 
Gen.  Sts.  ch.  108,  §  3.  Baker  v.  Ilathaway, 
5  Allen,  103.     See  p.  55. 

Specific  performance  of  an  agreement, 
by  a  married  man,  to  convey  land,  with 
release  of  dower  and  homestead,  may  be 
enforced,  so  far  as  he  personally  can  exe- 
cute it,  and  compensation  in  damages  de- 
creed, if  his  wife  refuses  to  release  dower 
and  homestead.  Park  v.  Johnson,  4 
Ahen,  259. 

A  widow  alleged  in  a  bill  in  equity  that, 
at  the  request  of  her  late  husband,  she 
conveyed  to  a  purchaser  her  separate  real 
estate,  and  the  price  was  received  by  her 
husband,  who  agreed,  in  consideration 
therefor,  to  convey  to  her  another  tract 


CHAP.   XXVIII.] 


SPECIFIC   PERFORMANCE. 


469 


of  land,  or  slaves  of  equal  value  with  her 
land ;  tiiat  her  husband  bouglit  land  for 
the  purpose  of  conveying  it  to  her,  but 
died  before  the  conveyance  to  him  was 
completed,  and  tliat  he  died  possessed  of 
many  slaves.  Held,  the  widow  was  not 
entitled  to  a  specific  performance,  as  the 
agreement  with  her  husband  was  not  in 
■writing,  but  she  was  entitled  to  the  pro- 
ceeds of  her  land,  subject  to  the  interest 
which  her  husband  had  in  it  as  tenant 
bv  the  curtesy  initiate.  Smith  v.  Smith, 
I'Wins.  (X.C.)    No.  2  (Eq.)  30. 

Although  the  onlj^  contract  of  which  an 
assif/nee  has  notice  recites  that  the  consid- 
eration thereof  has  been  paid  ;  the  vendor 
may  show  that  tiie  consideration  was  a 
bond  to  convey  other  land  to  him  which 
lias  never  been  conveyed  ;  and  tliereupon 
will  not  be  compelled  to  convey  until  the 
vendee's  contract  has  been  ixjrformed. 
Thompson  v.  Allen,  12  Ind.  539. 

A  cestui  que  trust  by  devise  cannot  dis- 
pose of  his  interest,  and  equity  will  not 
decree  specific  execution  of  a  sale  made 
by  him.     Shankland's,  &c.,  47  Penn.  113. 

In  case  of  auction-sale,  the  vendor,  a 
trustee  in  a  deed  of  trust,  may  sue  the 
vendee  for  specific  performance  or  dam- 
ages.   Dover  v.  Kennerly,  38  Mis.  469. 

See,  as  to  evidence,  pleadinr/,  and  prac- 
tice, in  proceedings  of  this  nature,  Owen 
V.  Frink,  24  Cal.  171 ;  Smoot  v.  Kea,  19 
Md.  398 ;  Holman  v.  Vallego,  19  Cal.  498. 

An  immaterial  variance,  between  the 
agreehient  stated  in  the  bill,  and  tliat  ad- 
mitted by  the  answer,  should  not  prevent 
a  decree  for  specific  performance.  Ash- 
more  V.  Evans.  3  Stockt.  151. 

The  complainant  need  not,  at  his  peril, 
state  the  precise  amount  due.  He  may 
state  his  case  most  favorably  to  himself, 
and,  upon  the  equities  of  the  case,  the 
Court  may  decree  a  different  amount. 
Hull  V.  Peer,  27  111.  312. 

And  a  variance  as  to  payment  is  not 
.fatal.     Bomier  v.  Caldwell,  8'Mich.  4G3. 

A  mistake  in  the  description  of  the 
premises  may  be  pleaded  and  proved  by 
either  party.  Abbott  v.  Dunivin,  34  Mis. 
148. 

Where  the  vendor,  plaintiff  in  a  bill  for 
specific  performance,  has  no  title,  his 
bill  will  be  dismissed,  though  the  objec- 
tion is  not  stated  in  the  answer,  but  is 
taken  before  a  Master.  Park  i'.  Johnson,  7 
Allen,  378. 

If  the  defendant  denies  the  agreement, 
and  does  not  set  up  the  Statute  of  Frauds 
as  a  defence,  he  cannot  afterwards  insist 
upon  it.     Hull  r.  Peer,  27  111.  312. 

Where  a  petition  for  specific  perform- 
ance set  forth  facts  which  woul-d  take  the 
case  out  of  the  Statute  of  Limitations; 
held,  the  defendant  could  not  plead  the 


statute,  unless  he  denied  these  averments, 
and  tlie  issues  of  fact  thus  presented  must 
be  tried.  Wright  v.  LeClaire,  4  (Jreeii,  420. 

A.  agreed  to  exchange  a  town  lot  for 
eighty  acres  of  land  to  be  conveyed  to 
him  by  15 ;  B.  to  furnish  iiim  five  hundred 
acres  from  which  to  select  ids  eighty-acre 
lot,  and  then  to  make  him  a  deed,  after 
which  A.  was  to  convey  tlie  town  lot,  and 
give  possession  at  a  certain  time.  B.  sued 
for  specific  performance,  alleging  tliat  he 
had  tlie  five  hundred  acres,  and  had  fur- 
nished A.  witli  a  description,  «S;c.,  but  that 
A.,  tliough  requested,  would  not  select, 
&c.,  wherefore  B.  could  not  tender  a  deed, 
&c.  Held,  the  averments  did  not  enable 
the  Court  to  judge  as  to  the  etiuity  of  a 
decree  for  specific  performance,  since  B. 
had  not  tendered  a  deed  for  any  specific 
lot,  and  had  not  described  or  given  the 
value  of  the  lands  from  which  A.  was  to 
choose.    Kirkman  v.  Kenvon,  17  Ind.  007. 

A  bond  for  the  sale  of  real  estate,  un- 
objectionable save  in  the  description,  which 
does  not  appear  to  be  complete,  but,  so  far 
as  it  goes,  is  consistent,  may  be  completed 
by  extrinsic  parol  evidence,  provided  a  new 
description  is  not  introduced  into  the  body 
of  the  contract,  and  provided  the  plead- 
ings contain  the  necessary  averments. 
Torr  V.  Torr,  20  Ind.  118. 

The  parties  having  contracted  for  a 
sale  on  credit,  the  purchase-money  to  be 
secured  by  a  mortgage,  payable  b}'  in- 
stalments, a  Court  of  Equity  will  not  decree 
a  conveyance  reserving  a  ground-rent,  ex- 
tinguishable  at  the  times  and  in  the  pro- 
portions specified  for  payment  of  the 
instalments.  Nor  payment  of  tlie  whole 
purchase-money  in  cash.  Philadelphia, 
&c.  V.  Lehigh,  &c.  36  Penn.  204. 

A  decree  for  specific  performance  by 
the  defendant,  without  finding  or  requiring 
performance  by  the  plaintiff  of  his  part  of 
the  agreement,  is  erroneous.  Owens  v. 
Hall,  13  Ohio,  n.s.  571. 

In  case  of  parol  evidence,  the  question 
is  required  by  law  to  be  tried  by  the  Court, 
and  it  is  therefore  discretionary  with  it, 
whether  any  issues  shall  be  submitted 
to  a  jury.  McCuUough  v.  McCuUough, 
31  Mis.  226. 

Where  a  party  who  had  covenanted  to 
convey,  and  given  possession,  and  taken 
bonds  for  the  purchase-money,  got  liack 
the  possession ;  on  a  bill  for  specific  per- 
formance, held,  he  was  liable  for  profits 
he  had  made,  or  reasonably  might  have 
made,  while  in  possession.  Suggr.  Stowe, 
5  Jones,  Eq.  120. 

A  suit  for  specific  performance  of  an 
agreement  to  convey  land  was  held  not  to 
be  within  the  statute  jiroviding  for  new 
trials  in  certain  cases  without  cause.  Allen 
V.  Davison,  10  Ind.  410. 


470  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXIX. 


CHAPTER    XXIX. 

PARTICULAR  ACTS  TO  BE  DONE  BY  THE  VENDOR,  IN  ORDER  TO  EN- 
FORCE THE  CONTRACT.  TENDER  OF  DEED,  BY  "WHOM  TO  BE 

MADE.  —  OFFER  OR  READINESS  TO  PERFORM,  WHETHER  SUFFICIENT. 
—  ALLEGATIONS  AND  PROOFS. 

1.  Having  considered  the  general  question, (a)  as  to  the  obliga- 
tion upon  one  party  to  a  sale  of  fulfilling  his  own  covenants,  in  order 
to  enforce  the  contract  against  the  other ;  we  proceed  to  point  out 
the  particular  allegations  and  proofs  involved  in  this  requisition. 

2.  One  of  the  most  important  inquiries  upon  this  subject  is, 
whether  the  vendor  is  bound  to  prepare  and  tender  a  deed.  As 
has  been  already  stated  (p.  30),  the  English  law  does  not 
impose  this  duty  upon  the  vendor,  but  requires  the  purchaser  to 
prepare  the  deed  and  offer  it  to  the  vendor  for  execution.  The  his- 
tory and  reasons  of  this  rule,  which  has  been  generally  reversed 
in  the  United  States,  and  indeed  does  not  seem  to  accord  with  the 
natural  and  usual  course  of  dealing  in  a  mutual  transaction,  are 
thus  stated  by  Mr.  Sugden :  — 

3.  "  A  purchaser  cannot  maintain  an  action  for  breach  of  con- 
tract, without  having  tendered  a  conveyance,  and  the  purchase- 
money.  It  was  always  clear  that  the  vendor  need  not  tender  a 
conveyance  where  the  purchaser  was  required  to  prepare  it  or  to  bear 
the  expense  of  it.  But  the  general  proposition  was  rendered 
doubtful  by  some  recent  dicta  of  the  judges,  that  it  is  incumbent 
on  the  vendor  to  prepare  and  tender  a  conveyance,  which,  as  a  gen- 
eral rule,  certainly  seems  to  have  prevailed  when  the  simplicity  of 
the  common  law  prevailed,  and  possession  was  the  best  evidence 
of  title ;  but  upon  the  introduction  of  modifications  of  estates,  un- 
known to  the  common  law,  and  which  brought  with  them  all  the 
difficulties  that  surround  modern  titles,  it  became  necessary  to 
make  an  abstract  of  the  numerous  instruments  relating  to  the  title, 
for  the  purpose  of  submitting  it  to  the  purchaser's  counsel ;  and  it 

(a)  See  chaps.  12  and  seq.,  28. 


CHAP.    XXIX.]     ACTS    OF   PERFORMANCE.  —  TENDER,   ETC.  471 

then  became  usual  for  him  to  prepare  the  conveyance.  This  prac- 
tice has  continued,  and  is  now  the  settled  rule  of  the  profession ; 
the  rule  is,  indeed,  sometimes  departed  from,  but  this  seldom 
happens,  except  in  the  country,  and  it  always  arises  from  consent, 
or  express  stipulation.  In  a  late  case,^  this  point  came  distinctly 
before  the  Court  of  Exchequer,  and  it  was,  in  conformity  to  the 
practice  of  the  profession,  decided,  that  the  purcliascr,  and  not  the 
vendor,  is  bound  to  prepare  and  tender  the  conveyance.  In  the 
early  case  of  Webb  v.  Bettel,^  the  same  rule  was  expressly  recog- 
nizect  by  Windham,  J.,  and  denied  by  no  one.  He  said  '  that, 
where  a  person  is  to  execute  a  conveyance  generally,  there  the 
counsel  of  the  purchaser  is  intended  to  draw  it,  and  then  the  pur- 
chaser ought  to  tender  it.'  It  is  settled,  that  if  a  conveyance  is  to 
be  prepared  at  the  expense  of  a  purchaser,  he  is  bound  to  tender  it. 
Now  it  is  admitted  on  all  hands,  that  the  expense  of  the  convey- 
ance must  be  borne  by  the  purchaser,  if  there  be  no  express  stipu- 
lation to  the  contrary.  Therefore  where  "there  is  no  such  stipula- 
tion the  purchaser  is  bound  to  tender  the  conveyance.  In  a  late 
case  in  the  Court  of  Exchequer,  where  a  lease  was  to  be  prepared 
at  the  sole  expense  of  the  lessor,  it  was  held  that  he  was  to  prepare 
it,  and  not  the  lessee.  It  may  be,  indeed,  that  one  may  be  bound 
by  the  express  terms  of  a  contract  to  prepare  a  lease  or  conveyance, 
and  yet  that  it  shall  be  paid  for  by  another,  for  such  stipulations 
are  not  inconsistent ;  but  where  all  that  is  stipulated  for  is,  that  it 
shall  be  prepared  at  the  expense  of  the  lessor,  and  there  is  no  con- 
tract to  explain  it,  it  must  be  intended  that  the  lessor  is  to  prepare 
it  also.  Upon  the  whole,  notwithstanding  the  recent  dicta  to  the 
contrary,  we  may  be  warranted  in  saying  that  the  purchaser,  and 
not  the  vendor,  ought  to  prepare  and  tender  the  conveyance.  And 
so  the  point  has  been  finally  decided.^  But  although  a  purchaser 
is  expressly  required  to  prepare  a  conveyance,  yet  if  a  bad  title  be 
produced,  he  may  maintain  an  action  for  recovery  of  his  deposit, 
without  tendering  a  conveyance.  So  where  a  vendor  has,  by  sell- 
ing the  estate,  incapacitated  himself  from  executing  a  conveyance 
to  the  first  purchaser,  that  renders  further  expense  and  trouble  on 
his  part  unnecessary ;  and  he  may  accordingly  sustain  an  action 
without  tendering  a  conveyance  or  the  purchase-money.'"^ 

1  Baxter  v.  Lewis,  1  Forr.  Exch.  61.  3  Stephens  v.  Medina,  3  Gale  &  Dav. 

2  1  Lev.  44,  110. 

*  1  Sugd.  308-311. 


472  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXIX. 

4.  Agreeably  to  these  views,  in  England,  it  is  incumbent  on 
the  vendee  to  prepare  the  conveyance,  even  where  the  agreement 
is  silent  on  the  subject.^  And,  more  especially,  a  stipulation,  that 
the  conveyance  should  be  at  his  own  expense,  is  equivalent  to  a 
provision  that  he  should  prepare  it.^ 

5.  But,  as  stated  (§  2),  the  English  rule  on  this  subject  has  not 
been  for  the  most  part  adopted  in  the  United  States,  for  the  many 
sufficient  reasons  set  forth  in  some  of  the  cases,  which  we  proceed 
to  cite ;  and  it  may  be  laid  down  as  the  prevailing  doctrine  of 
American  law,  that  the  vendor  is  bound  to  prepare  and  tender 
the  conveyance,  more  especially  where  a  definite  time  is  fixed  by 
the  contract,  or  where  the  price  or  any  part  of  it  has  been  paid  or 
secured.^  Whether  the  vendee  is  bound  to  demand  a  deed,  before 
proceeding  against  the  vendor  for  non-performance  of  the  contract, 
is  a  point  somewhat  unsettled,  and  depending  on  the  language  of 
the  agreement,  and  the  circumstances  of  the  case.  But  he  is  not 
himself  bound  to  prepare  and  tender  the  deed. 

6.  Thus  it  is  held  in  Massachusetts,  that  a  party,  who  contracts 
to  execute  and  deliver  a  deed,  is  bound  to  prepare  the  deed,  if 
there  be  no  stipulation  that  it  shall  be  prepared  by  the  grantee.* 
"  If  the  law  of  England  is  otherwise,  it  must  be  founded  on  cus- 
tom and  practice,  and  not  on  any  legal  principle  independently  of 
practice."  ^ 

7.  In  New  York,  where  it  was  formerly  held  that  the  vendee 
must  make  a  double  demand  for  a  deed,  which  somewhat 
anomalous  doctrine  has,  however,  been  since  overruled,  the  Court 
say,  "  It  may  be  considered  the  rule  of  this  court,  that  when  a 
party  covenants  to  convey,  he  is  not  in  default  until  the  party  who 
is  to  receive  the  conveyance,  being  entitled  thereto,  has  demanded 
it,  and  having  waited  a  reasonable  time  to  have  it  drawn  and  exe- 
cuted, has  made  a  second  demand.  In  England,  the  party  entitled 
to  the  deed  is  bound  to  have  it  drawn  and  presented  for  execution ; 
we  have  not  gone  so  far ;  the  party  who  is  to  give  a  deed  certainly 
should  have  it  drawn  at  his  own  expense,  but  upon  such  a  cove- 
nant as  that  declared  on  in  this  case  (a  covenant  to  convey  by  a 
day  certain)  the  covenantor  is  not  bound  to  prepare  the  convey- 
ance until  it  is  demanded,  when  it  is  his  duty  to  execute  and  per- 

1  Poole  V.  Hill,  6  M.  &  W.  835 ;  Bax-         3  Winton  v.  Sherman,  20  Iowa,  295. 
ter  V.  Lewis,  1  Forr.  61.  4  Tinney  v.  Ashley,  15  Pick.  546. 

2  Seward  v.  Willock.'S  E.  198.  5  Per  Wilde,  J.,  ib.  552. 


CHAP.    XXIX.]     ACTS   OF    PERFORMANCE.  —  TENDER,   ETC.  473 

feet  the  conveyance  with  all  reasonable  despatch,  and  hold  it  ready 
for  delivery  when  called  for."  ^ 

8.  In  Carpenter  v.  Brown,-  Gridlcy,  J.,  says,  "  There  was  no 
necessity  for  the  announcement  of  such  a  doctrine  [the  necessity  of 
a  second  demand]  in  that  case.  The  remark  was  obiter,  and  wo 
think  is  not  the  law  of  the  land."  He  proceeds  to  remark,  that, 
where  the  time  for  delivering  a  deed  is  not  specified  in  the  con- 
tract, a  reasonable  time  should  perhaps  be  allowed  after  a  demand. 
But  where  the  time  is  fixed,  one  demand  is  sufficient,  even  if  any 
is  requisite.  And  the  doctrine  that  the  vendee  must  prepare  and 
tender  a  deed  is  still  more  explicitly  disavowed. 

9.  In  Pennsylvania,  the  English  doctrine  is  also  rejected  for  the 
reasons  thus  assigned  :  "  Sugden  founds  his  opinion  on  the  modern 
practice  of  conveyances  in  England,  and  confesses,  that  formerly 
the  conveyance  was  prepared  by  the  seller.  The  change  which 
has  taken  place  in  the  practice,  he  attributes  to  the  difficulties 
which  surround  titles  of  land,  since  the  introduction  of  the  mode 
of  conveying  founded  on  the  statute  of  uses  ;  but  even  now,  it  is 
incumbent  on  the  seller  to  furnish  an  abstract  of  all  the  title 
papers,  to  be  submitted  to  the  purchaser's  counsel.  Sugden  con- 
fesses, also,  that  by  some  recent  dicta  of  eminent  judges,  it  is 
incumbent  on  the  seller  to  prepare  and  tender  a  conveyance.  It 
is  evident,  however,  that  what  may  be  a  very  convenient  practice 
in  England,  may  be  very  inconvenient  here.  We  have  not  yet  in- 
troduced, and  it  is  unnecessary  that  we  should  introduce,  the 
intricacies  and  expenses  of  English  conveyancing,  which  have  been 
much  increased  by  the  universal  practice  of  marriage  settlements. 
In  the  present  situation  of  the  country,  there  is  no  difficulty  in 
preparing  a  deed  of  conveyance,  and,  therefore,  no  pretence  for 
dispensing  with  what  appears  to  be  the  plain  meaning  of  the  par- 
ties ;  that  is  to  say,  that  when  the  seller  covenants  that  he  will 
convey  the  title  to  the  purchaser  (without  any  mention  of  such 
conveyance  as  the  purchaser  shall  devise,  «fec.),  he  shall  himself 
prepare  and  tender  the  deed  of  conveyance."  ^ 

10.  In  Mississippi,  in  the  case  of  Johnston  v.  Beard,*  the  Court 
say,  "  In  England,  the  party  entitled  to  the  deed  is  bound  to  have 
it  prepared  and  presented  for  execution.     The  purchaser  is  to  be 

1  Per  Savage,  C.J.,  Connelly  v.  Pierce,  ^  Per    Tilj,'hnian,    C.J.,    Sweitzer    v. 

7  Wen.l.  131.  Iluinniell,  3  S.  &  R.  230,  231. 

■i  G  Barb.  149.  ■*  7  Sm.  &  M.  217. 


474  LAW    OP   VENDORS    AND    PURCHASERS.        [CHAP.    XXIX. 

at  the  expense  of  the  conveyance.  We  need  not  now  determine 
which  of  these  is  the  correct  rule  [viz.,  this,  or  the  New  York  rule 
as  to  demanding  a  conveyance],  since  one  or  the  other  undoubtedly 
is.  If  either  be  adopted,  this  declaration  is  bad."  In  the  subse- 
quent case  of  Standifer  v.  Davis,^  the  Court  distinctly  hold,  that  it 
is  sufficient  for  the  vendee  to  demand  a  deed  from  the  vendor, 
without  himself  preparing  it. 

11.  So  in  Minnesota  the  purchaser  is  not  bound  to  prepare 
and  tender  a  deed.^     (Partly  upon  the  statute  law.) 

12.  But  in  Arkansas  the  Court  have  adhered  to  the  English 
rule.  Lacy,  J.,  says,  "  The  reasonableness  or  justice  of  the  rule 
may  be  somewhat  difficult  to  discover  at  the  present  day ;  but  the 
principle  being  unquestionably  settled,  it  would  work  injustice  and 
wrong  now  to  change  it,  and  we  are  not  at  liberty  to  do  so  to  rem- 
edy a  partial  evil.  We  are  not  aware  of  any  adjudication  to  the 
contrary,  except  a  few  cases  in  Blachford's  Reports,  and  some 
loose  dicta  thrown  out  by  the  English  judges ;  and  these  are 
wholly  insufficient  to  overrule  the  general  current  of  both  English 
and  American  authorities ;  and  that  too  where  the  point  has  been 
expressly  and  solemnly  ruled  on  many  occasions."  ^ 

13.  Contrary  to  the  rule  as  to  a  tender  of  money,  that,  in 
order  to  be  available,  it  must  be  absolute  and  unconditional ;  the 
tender  of  a  deed  by  the  vendor,  where  the  covenants  are  mutual, 
is  not  required  to  be  made,  but  with  the  qualification  that  the  ven- 
dee shall,  concurrently  with  the  acceptance  of  it,  fulfil  his  part  of 
the  contract  by  payment  of  the  consideration.  Thus,  in  assump- 
sit by  the  vendor  against  the  vendee  of  land,  for  not  accepting  it, 
and  paying  the  purchase-money,  the  plaintiff  averred,  that  he  was 
seised  in  fee,  and  that  the  defendant  agreed  to  purchase,  on  having 
a  good  title,  and  that  his  title  was  made  good,  perfect,  and  satisfac- 
tory to  the  defendant,  and  that  he  had  been  always  ready  and  will- 
ing, and  offered,  to  convey  to  the  defendant,  but  the  defendant 
did  not  pay  the  purchase-money.  On  demurrer,  held,  that  these 
general  allegations  were  tantamount  to  an  averment  of  perform- 
ance by  the  plaintiff,  and  entitled  him  to  recover  for  non-payment 
of  the  purchase-money.*  So  where  the  plaintiff  covenanted  to  sell 
a  house  to  the  defendant  for  a  certain  sum,  the  defendant  covenant- 
ing to  pay  the  plaintiff  that  sum  on  the  day  when  the  house  should 

1  13  Sm.  &  M.  52.  3  Byers  v.  Aiken,  5  Pike,  421. 

2  Paul  &c.  V.  Brown,  9  Min.  157.  4  Martin  v.  Smith,  6  E.  555. 


CHAP.  XXIX.]  ACTS  OF  PERFORMANCE.  —  TENDER,  ETC.         475 

be  finished,  and  the  key  delivered  to  the  defendant,  with  a  satisfac- 
tory deed  and  title,  free  of  all  incumbrances ;  held,  that  the 
covenants  were  dependent,  and  that  the  ])laintiff  was  not  Ijound  to 
make  an  unconditional  tender  of  a  deed,  unless  the  defendant 
was  willing  to  accept  it  and  pay  the  purchase-money.^  Wilde,  J., 
says,  the  plaintiff"  was  not  bound  to  make  an  unconditional  tender 
of  a  deed,  unless  the  other  party  was  willing  to  accept  it  and  to 
pay  the  purchase-money.  An  offer  to  perform  the  contract  on  his 
part,  he  having  the  ability  to  perform  it,  and  a  refusal  by  the  testator 
to  perform  his  part  of  the  agreement,  amount  clearly  to  a 
breach  .-(rt) 

14.  It  has  been  held,  that,  where  the  power  to  perform  a  cove- 
nant on  the  part  of  the  plaintiff  depends  on  an  act  previously  to  be 
done  on  the  part  of  the  defendant,  it  is  unnecessary  for  the  plain- 
tiff to  aver  a  tender  and  refusal,  —  an  averment  of  readiness  to 
perform  is  sufficient.  Thus,  where  the  defendant  covenants  to 
convey,  and  the  plaintiff  covenants  to  execute  a  bond  and  mort- 
gage for  the  land,  it  is  sufficient  for  the  plaintiff  to  aver  his  readi- 
ness to  perform.'^  But  in  a  late  case,  where  a  vendor  covenanted 
to  execute  and  deliver  a  deed,  and  the  vendee  to  execute  and 
deliver,  when  the  deed  should  be  tendered,  a  bond  and  mortgage 
for  the  agreed  price  ;  a  declaration  that  the  vendee  offered  to  make 
and  deliver  the  bond  and  mortgage,  without  averring  a  tender, 
and  requested  the  former  to  make  and  deliver  a  deed,  which  he 
refused  to  do,  was  held  to  be  insufficient.'*(J) 

1  Howland  v.  Leach,  11  Pick.  154.  •*  West  i'.  Emmons,  5  Johns.  179. 

2  Ibid.  154,  155.  *  Campbell  v.  Gittings,  19  Ohio,  347. 

(«)  The  defendant  stipulated  to  pay  a  the  purchase-money,  and  sign  an  agree- 

sum  of  money,  on  the  plaintiff's  assigning  ment  for  payment  of  the  remainder,  witli- 

to   him   an   equity  of  redemption.     The  in    twenty-eight    days,    when   possession 

declaration  averred,  that  the  plaintiff  was  should  be  given  of  the  part  in  hand;  and 

ready  and  willing  and  offered  to  assign,  should    have    proper    conveyances     and 

and  tendered  a  draft  of  an  assignment  to  assignments  of  the  leases,  without  re'quir- 

the   defendant   for   his   approbation,   and  ing  the  lessor's  title,  on  payment  of  the 

offered  to  execute  and  deliver,  and  would  remainder  of  the   purchase-money.     As- 

have  executed  and  delivered  such  assign-  sumpsit,  by  the   seller,  for   non-perform- 

ment  to  the  defendant,  but  that  he  abso-  ance   of  the  conditions.     Declaration,  in 

lutely  discharged  the  plaintiff  from  exe-  the  first  count,  that  the   plaintiffs    gave 

cuting  the  same  or  any  assignment  what-  possession,  according   to   the  conditions, 

ever,  and  had    not   paid    the   monci/.     On  and  were  also  ready  and  willing  to  give 

demurrer,  the  declaration  was  held  sufR-  proper  conveyances  and   assignments   of 

cient.   Jones  i'.  Barkley,  Dougl.  Gb4.    See  the  leases,  on  i)ayment  of  the  remainder 

§  16.  of  the  purchase-money ;    in    the   second 

(b)  The  defendant  purchased  a  lease-  count,  that  the  plaintiffs  contracted  with 
hold  estate,  at  auction,  a  condition  of  the  defendant  to  sell,  and  the  defendant  to 
which  was,  that  the  purchaser  should  im-  purchase,  an  estate,  and  that,  on  the  plain- 
mediately  pay  down  a  deposit,  in  part  of  tiffs'   having  promised  the  defendant  to 


476  LAW    OP   VENDORS   AND    PURCHASERS.        [CHAP.    XXIX. 

15.  The  vendor  is,  of  course,  not  required  to  tender  a  deed, 
where  the  covenants  to  convey  and  to  pay  the  price  are  not  mutual 
or  conditional,  but  independent.  Thus,  in  an  agreement  under 
seal  to  sell  and  purchase  certain  premises,  the  purchaser  cov- 
enanted to  pay,  on  or  before  a  fixed  day,  as  the  consideration  of 
such  sale  and  purchase,  a  certain  sum,  witli  interest  to  the  comple- 
tion of  the  purchase,  the  vendor  allowing  thereout  the  same  rate  of 
interest  for  so  much  of  the  money  as  might  be  paid  in  the  mean- 
while ;  and  the  purcliaser  agreed  to  pay  for  the  conveyance  and 
the  stamp.  Held,  the  conveyance  was  not  a  condition  precedent 
to,  or  concurrent  witli,  the  payment ;  and  the  seller  might  there- 
fore sue  for  the  purchase-money  and  interest,  without  previously 
tendering  a  conveyance. ^(a) 

16.  The  tender  of  a  deed  may  be  dispensed  with  by  the  consent, 
waiver,  or  discharge  of  the  vendee.  Thus,  in  assumpsit  by  vendor 
against  purchasers,  the  declaration  stated  that,  in  consideration  of 
the  plaintiff's  selling  to  the  defendants  certain  land,  to  be  paid  for 
as  soon  as  the  conveyance  should  be  completed,  the  defendants 
promised  to  purchase  and  pay  for  the  same  ;  that,  although  the 
plaintiff  had  allowed  the  defendants  to  enter  into  possession,  and 
had  always  been  ready  and  willing  to  make  a  good  title,  and 
offered  to  execute  a  conveyance,  and  would  liave  tendered  a  proper 
conveyance,  but  that  the  defendants  discharged  him  from  so  doing ; 
yet  the  defendants  did  not  pay,  &c.  Plea,  tliat  no  conveyance  had 
ever  been  made  or  executed.  Held,  on  general  demurrer,  that  the 
plea  was  bad,  and  the  declaration  good.2(5) 

17.  But  a  parol  waiver  has  been  held  insufficient.     Thus  A. 

1  Mattock  V.  Kinglake,  10  Ad.  &  Ell.         2  Laird  i-_  piui,  7  Mees.  &  Wels.  474 ; 
50.     See  Anderson  v.  White,  27  111.  57 ;    pp.  243,  n.,  262. 
Younger  v.  Welch,  22  Tex.  417. 

convey,  he  promised  to  accept  the  con-  conditions  on  their  part ;  but,  at  all  events, 
veyance,  and  pay  the  remainder  of  the  such  objections  were  cured  by  a  verdict, 
purchase-money  in  a  reasonable  time  ;  Ferry  v.  Williams,  1  Moore,  4'J8. 
that,  although  the  plaintiffs  were  ready  (a)  Upon  the  same  principle,  where, 
and  willing,  and  ottered  to  convey  and  by  the  terms  of  a  contract,  the  vendor  of 
assign  to  the  defendant,  and  a  reasonable  real  estate  acknowledged  the  receipt  of 
time  had  elapsed  for  accepting  the  con-  money,  and  of  paper  assigned,  and  the 
veyance,  the  defendant  would  not  accept  note  of  the  vendee,  as  payment,  and 
it,  or  pay  the  remainder  of  the  purcliase-  agreed  to  execute  a  deed  when  demanded, 
money.  Motion  in  arrest  of  judgment,  and  the  collection  of  the  paper  and  the 
on  the  grounds  that  the  plaintiffs  had  not  payment  of  the  note  were  not  made  con- 
set  out  their  title,  or  tendered  the  convey-  ditions  precedent  to  the  conveyance  ;  the 
ances.  Held,  the  plaintiffs  were  not  bound  complainants  were  held  equitably  entitled 
to  set  out  their  title,  and  the  allegation  of  to  relief.  Smoot  v.  Rea,  19  Md.  398. 
their  being  ready  and  willing  to  convey  (6)  See  §  13,  n. 
was  equivalent  to  a  performance  of  the 


CHAP.  XXIX.]  ACTS  OF  PERFORMANCE.  —  TENDER,  ETC.         477 

covenants,  that  he  will  on  or  before  a  certain  day  convey  to  B.,  by 
such  conveyance  as  B.'s  counsel  should  advise,  all  the  ground 
before  conveyed  to  him  by  C,  in  consideration  of  which,  B.  cove- 
nants to  [)ay  a  certain  sum,  and  reserve  certain  rents,  A:c.,  to  A., 
and  to  lay  out  a  certain  sum  on  the  premises.  Held,  A.  cannot 
maintain  covenant  against  B.,  without  averring  either  a  convey- 
ance, or  a  readiness  to  convey,  on  or  before  the  day,  and  that  B. 
prevented  him  by  some  act  or  neglect  of  his.  And  it  is  not  suffi- 
cient to  show,  that  after  the  day  B.  accepted  a  conveyance  of  ground- 
rents,  in  lieu  of  part  of  the  land,  and  accepted  that  and  the  con- 
veyance of  the  other  part  in  lieu  of  the  conveyance  covenanted  to 
be  made  by  A. ;  for  this  is  a  substitution  of  a  different  agreement 
by  parol,  to  which  the  covenant  does  not  apply. ^(a) 

18.  With  regard  to  the  form  of  an  allegation  by  the  vendor,  that 
he  has  fulfilled  his  obligation  to  convey  ;  it  has  been  held,  that,  in 
an  action  on  a  bond  to  execute  and  deliver  a  deed  of  land,  a  plea 
of  general  performance,  not  stating  specially  the  manner  of  per- 
formance, is  bad.2  Wilde,  J.,  says,  "  In  general,  a  plea  of  perform- 
ance of  a  condition  must  show  specially  the  manner  of  the  per- 
formance. The  exception  is,  where  the  matter  is  of  so  intricate 
and  complicated  a  nature,  or  embraces  such  a  variety  of  minute 
circumstances,  that  a  particular  statement  would  cause  great  pro- 
lixity." ^  But,  in  assumpsit  for  the  purchase-money  of  an  estate, 
where  the  condition  of  sale  was  to  pay  on  or  before  the  14th  of 
June,  on  having  a  good  title  ;  the  plaintiff  averred,  that  he  was 

1  Heard  v.  Wadliam,  1  E.  619.  3  ibid.  5.53. 

2  Tinney  v.  Asliley,  15  Pick.  546. 

(a)  By  agreement,  a  deed   was   exe-  wliole  purchase-money,  was  bound  to  ex- 

cuted  at  the  time  of  sale,  and  deposited  ecutc  to  him  a  deed,  payment  to  be  made 

with  A.,  to  be  delivered  on  payment  of  a  at  the  ofHce  of  W.  &  B. ;  that  on  the  said 

note   for   the   price.      Held,    the   vendor  day  the  defendant  tendered  all  the  money 

might  bring  a  suit  on  the  note  without  then  due,  together  with  the  costs  in  this 

tender  of  a  deed.     Rollins  v.  Thornbury,  suit,  to  the  plaintiff  at  said  office,  and  de- 

22  Iowa,  389.  manded  of  W.  &  B.,  the  plaintifi's  agents, 

Specific  performance  may  be  decreed  a  deed,  and  offered  a  deed  for  execution, 

for  the  vendor,  if  the  vendee  has  taken  but  that  the  plaintilf  neglected  and  refused 

possession,  though  no  deed  has  been  ten-  to  execute  the  deed.     Held,  tliat  this  sup- 

dered.    The  possession  is  a  waiver.     Em-  plemental    answer   was   insufficient,   and 

mens  V.  Kiger,  23  Ind.  483.  leave  to  file  it  was  properly  denied.    Also, 

The  purcliase-money  for  certain  land  that  it  would  be  presumed  tliat  it  was  in- 

was  to  be  paid  in  instalments,  and,  before  tended  that  the  plaintiff  should  liave  a  rea- 

the  last  of  them  fell  due,  suit  was  brought  sonable  time  after  payment  and  notice,  in 

to  collect  those  which  had  fallen  due.     At  which  to  make  out  and  forward  the  con- 

the  trial,  the  last  instalment  having  fallen  veyance,  and,  in  the  absence  of  proof  of  a 

due,  the   defendant  asked  leave  to  file  a  contrary  arrangement,  the  law  would  give 

supplemental  answer,  in  which  he  stated  him  such  time.     Dodge  v.  Hopkins,  14 

that,  on  the  day  when  the  last  instalment  Wis.  630. 
fell  due,  the  plaintiff,  upon  payment  of  the 


478 


LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXIX. 


seised  in  fee,  and  made  a  good  and  satisfactory  title  to  the  defend- 
ant, before  the  24tli  of  June.  Held  sufficient,  without  further 
particularizing  the  title.^(a) 

1  Martin  v.  Smith,  2  Smith,  543. 


(a)  By  an  agreement  between  the 
plaintiflfs  and  defendants,  reciting  that  the 
plaintiffs  had  advertised  for  sale  by  auc- 
tion certain  collieries  and  other  property, 
mider  a  power  contained  in  certain  mort- 
gages, in  which  property  two  of  the  de- 
fendants were  or  claimed  to  be  incum- 
brancers, and  that  the  plaintiffs  had,  upon 
the  request  of  the  defendants,  and  for 
certain  alleged  considerations,  agreed  to 
postpone  the  sale  ;  it  was  stipulated  that 
the  amount  found  due  to  the  plaintiffs,  on 
taking  an  account  as  therein  mentioned, 
should  be  secured  by  the  covenant  of  the 
defendants,  by  three  instalments,  payable, 
&c. ;  that  the  possession  of  the  collieries, 
debts,  and  stock  should  be  given  up  to 
the  defendants ;  that,  on  payment  of  the 
first  instalment,  the  whole  of  the  property 
mortgaged  to  the  plaintiffs  (except  the 
collieries)  should  be  released  and  con- 
veyed to  the  defendants ;  and  that  the 
covenant  should  be  forthwith  prepared 
and  executed  by  all  jiarties  within  twenty- 
one  days.  In  assumpsit  against  the  de- 
fendants for  not  executing  the  covenant, 
the  declaration  alleged,  that  the  plaintiffs 
■were  interested  in  the  property  as  mort- 

1  The  general  rule  of  the  English  law, 
requiring  preparation  and  tender  of  the  deed 
by  the  vendee,  is  not  applicable,  where  the 
contract  expressly  imposes  the  dutv  upon  the 
vendor.  Thus  a  contract  provided,  that  a 
lease  should  be  drawn,  prepared,  and  exe- 
cuted at  the  sole  expense  of  the  lessor.  In  an 
action  on  the  agreement  by  the  lessee;  held, 
it  was  not  necessary  to  aver  that  a  lease  was 


gagees,  under  and  by  virtue  of  certain 
mortgages,  and  were  in  possession  of  said 
collieries,  and  certain  coal,  &e.,  the  prod- 
uce of  the  collieries,  in  which  property 
two  of  the  defendants  were,  or  claimed  to 
be,  interested  as  incumbrancers,  and  that 
the  plaintiffs  had  advertised  for  sale,  and 
were  about  to  sell,  their  interest  in  said 
property,  under  a  power  lawfully  author- 
izing them  in  that  behalf,  and  contained 
in  the  said  mortgages,  of  all  which  the 
defendants  had  notice ;  and,  after  setting 
out  the  agreement,  assigned  for  breach 
the  non-execution  by  the  defendants  of 
the  covenant.  Held,  on  special  demurrer, 
that  the  production  of  a  title  to  convey 
was  not  a  condition  precedent  to  the  plain- 
tiffs' right  to  sue,  the  parties  not  standing 
in  the  relation  of  vendors  and  purchasers  ; 
also,  that  there  was  no  repugnancy  or  in- 
consistency in  the  allegation  that  the 
plaintiffs  were  about  to  sell  tlieir  interest 
under  a  power,  the  term  "  power  "  being 
used  in  its  popular  and  not  in  its  artificial 
sense  ;  also,  that  the  allegation  of  interest 
in  the  plaintiffs  was  sufficiently  certain. 
Hallewell  v.  Morrell,  1  Scott,  309.1 


tendered  to  the  lessor  for  execution.     Price  v. 
Williams,  1  Mees.  &  Wels.  6. 

Upon  an  award  to  perform  a  purchase  and 
pay  the  price  upon  conveyance  by  the  plaintiff 
to  the  defendant,  the  defendant  is  not  in  con- 
tempt before  tender  of  a  conveyance  executed, 
demand  of  the  monej',  and  refusal  to  accept 
and  pay.  Standley  v.  Heramington,  6  Taunt. 
561. 


CHAP.  XXX.]       CLAIM  OF  THE  VENDEE,  ETC.  479 


CHAPTER   XXX. 

CLAIM  OF  THE  VENDEE,  IN  CASE  OF  DEFECTIVE  TITLE,  OR  OTHER 
BREACH  OP  CONTRACT.  —  FORM  OF  ACTION.  —  TENDER  OF  PUR- 
CHASE-MONEY  AND   DEMAND    OF   DEED,   ETC. 

1.  While,  as  has  been  seen,  the  vendor  must  in  general  prove  a 
valid  title  to  the  land  sold,  in  order  to  recover  the  purchase-money; 
the  vendee,  on  the  other  hand,  has  his  remedy  against  the  vendor, 
to  recover  back  money  already  paid  upon  the  faith  of  such  title, 
upon  the  ground  that  it  has  proved  to  be  defective.  The  rule  often 
found  stated  in  the  books,  that  the  action  of  assumpsit  does  not  lie 
for  the  purpose  of  trying  a  question  of  title  to  real  property,  has 
never  been  held  to  preclude  this  form  of  action  in  the  case  men- 
tioned, although  founded  immediately  and  solely  upon  an  alleged 
want  of  title,  and  although  the  defence,  if  any,  must  ordinarily  be 
such  as  to  turn  wholly  upon  this  question.  The  correct  view  would 
seem  to  be,  that  the  plaintiff  does  not  claim- a  title  to  the  land  in 
question,  but  seeks  to  recover  upon  the  very  ground  that  no  title 
can  be  made ;  while,  although  the  defendant  mat/  set  up  his  title 
as  a  defence,  and  thereby  bring  it  in  issue,  he  may  also  make  vari- 
ous other  defences  ;  and  moreover  a  judgment  in  his  favor  will  not 
settle  the  title,  as  between  him  and  any  adverse  claimant,  not  a 
party  to  the  suit,  (a) 

(a)  It  is  said  in  a  work  of  liigh  author-  sealed  writing,  promising  to  pay  the  plain- 

ity  (1   Chit.  ri.  342),  that    "courts  will  tiff'  all  the  rents  whicli  he  sliould  receive 

not  allow  a  colorable  title  to  land,  &c.,  to  after  payment  of  his  debt,  or  else  allow 

be  tried  in  this  form  of  action,  Init  the  the  plaintiff  the  use  and  improvement  of 

plaintiff  must  declare  in  tort."     This  re-  the  land.     The  debt  having  been  paid  in 

mark,  however,  is  applied  more  particu-  his  lifetime,  it  was  held,   tliat  rents  re- 

larly  to  the  icaiver  of  torts,  which  is  often  ceived  by  his  heir  under  color  of  descent 

allowed  with  reference  to  personal  prop-  might  be  recovered  by  the  plaintiff  in  an 

erty,  but  not,  as  this  writer  here  takes  action  for  money  had  and   received,  the 

occasion  to  say,  in  case  of  injuries  to  real  plaintiff  not  claiming  any  title  to  tlie  es- 

estate,  whicli  involve  the  title.     So,  in  an  tate  in  question,  nor  contesting  any  title 

action  for  money  liad   and  received,  it  set  up  by  the  defendant.   Arms  r.  Ashley, 

appeared   that  the  holder  of  a  note,  in-  4  Pick.  70.     So  the  rule  in  question  does 

dorsed  to  him  as  security  for  a  debt,  liav-  not  apply  to  cases  where  only  the    past 

ingrecovered  judgment  against  the  maker  rents  of  land  are   in  question.     Money- 

and  levied  on  the  rents  and  profits  of  his  penny  v,  Bristow,  2  Russ.  &  My.  117. 
land  for  a  term  of  years,  signed  an  un- 


480  LAW   OF   VENDORS   AND    PURCHASERS.         [CHAP.    XXX. 

2.  Hence  it  has  been  held,  that  an  action  for  money  had  and 
received  may  be  maintained,  to  recover  money  received  by  the 
defendant  as  a  deposit  on  the  purchase  of  an  estate  by  the  plaintiff, 
to  which  the  defendant  cannot  make  the  stipulated  title. ^  So  the 
plaintiff  had  from  time  to  time  paid  rent  to  the  defendants  for  cer- 
tain premises  which  he  held  of  them,  but  to  which  it  afterwards 
turned  out  they  had  no  title.  The  plaintiff,  having  been  ejected, 
and  coinpelled  to  pay  the  mesne  profits  for  the  time  during  which 
he  held  of  the  defendants,  brings  assumpsit  to  recover  the  amount 
of  the  rent  paid  to  them.  It  was  objected,  that  title  to  land  could 
not  be  tried  in  an  action  for  money  had  and  received  ;  but  the 
objection  was  overruled.  Lord  Tenterden  says,  "  Here  was  no  trial 
of  title.  It  had  been  previously  ascertained,  that  the  defendants 
had  no  title  whatever  to  this  land  in  respect  of  which  the  plaintiff 
had  paid  rent  to  them  ;  and  the  defendants  did  not  at  the  trial  of 
this  cause  claim  to  have  any  title."  ^  So  a  defendant,  supposing 
himself  the  legal  representative  of  a  tenant  for  years,  sold  the  term 
and  delivered  the  lease  to  the  plaintiff,  but  without  any  assignment 
or  formal  conveyance,  saying,  the  premises  were  his,  and,  if  any 
thing  happened,  he  would  see  the  plaintiff  righted.  Held,  the  plain- 
tiff might  maintain  an  action  for  money  had  and  received  against 
him,  the  rightful  administrator  of  the  tenant  for  years  having 
ousted  the  plaintiff  by  ejectment.  Lord  Kenyon  said,  "  I  do  not 
wish  to  disturb  the  rule  of  caveat  empto7'  adopted  in  Bree  v.  Hol- 
beck,  and  in  other  cases  where  a  regular  conveyance  was  made,  to 
which  other  covenants  were  not  to  be  added ;  for  in  general  the 
seller  only  covenants  for  his  own  acts  and  for  those  of  his  ancestor, 
in  which  respect  the  case  of  a  mortgage  differs  from  it,  as  a  mort- 
gagor covenants  that  at  all  events  he  has  a  good  title ;  but  here 
the  whole  passed  by  parol,  and  it  proceeded  on  a  misapprehension 
by  both  parties,  that  the  defendant  was  the  legal  representative 
of  the  lessee,  though  it  turned  out  afterwards  that  he  was  not. 
As,  therefore,  the  money  was  paid  under  a  mistake,  I  think  that 
an  action  for  money  had  and  received  will  lie  to  recover  it  back."^ 
So  the  plaintiff  purchased  of  the  defendant  a  term  for  years,  paying 
him  *S5l,800  therefor.  At  the  time  of  the  purchase,  both  parties 
honestly  but  erroneously  supposed  that  the  defendant  was  the 

1  Alpass   V.   Watkins,   8    T.  E.   516  ;         2  Newsome  v.   Graham,  10  B.  &   C. 
Elliot  V.  Edwards,  3  B.  &  P.  181 ;  Eames     234. 
V.  Savage,  li  Mass.  425.  •*  Cripps  v.  Reade,  6  T.  R.  606. 


CHAP.  XXX.]        CLAIM  OF  THE  VENDEE,  ETC.  481 

owner  of  the  term.  Held,  the  plaiutifT  was  entitled  to  recover  back 
the  money. ^  So,  where  the  defendant  agreed  to  sell  an  estate  to 
the  plaintiff  upon  the  deposit  of  a  sum  of  money,  but  was  after- 
wards disabled  from  performing  the  agreement;  held,  the  plaintiiT 
might  recover  the  deposit,  though  the  agreement  for  sale  was  by 
deed.2  So  A.  devised  to  B.,  C,  D.,  and  E.,  two  parcels  of  land,  in 
trust  to  sell,  and  divide  the  money  among  his  brother's  and  sister's 
children.  Tlie  devisees,  E.  being  one  of  twenty-four  persons  enti- 
tled under  the  will  to  a  share  of  the  money,  were  proceeding  to 
sell,  when  it  was  agreed  by  the  three  first  trustees,  and  the  twenty- 
three  other  persons  entitled  to  the  money,  that  E.  should  become 
the  purchaser  of  the  two  parcels,  paying  .£300  for  one  and  .£700 
for  the  other.  A  conveyance  was  accordingly  prepared  and  exe- 
cuted by  B.  and  C.  only,  upon  which  E.  took  possession  and  paid 
the  purchase-money,  which  was  divided  among  the  several  persons 
entitled  under  the  will.  E.,  being  afterwards  evicted  from  the 
smaller  parcel,  in  consequence  of  a  defect  in  the  title  derived 
under  the  will,  brought  an  action  for  money  had  and  received 
against  one  of  the  twenty-three  persons,  to  recover  the  share 
of  the  =£300  received  by  him,  at  the  same  time  refusing  to  give  up 
the  parcel  of  land  for  which  =£700  had  been  paid.  Held,  that  he 
was  entitled  to  recover.^  So  a  father  made  a  conditional  arrange- 
ment, by  parol,  with  the  defendant,  on  behalf  of  his  son,  the  plain- 
tiff, for  the  purchase  of  certain  lands,  which  was  to  be  ratified  or 
annulled  by  the  plaintiff,  at  his  discretion,  on  attaining  majority. 
Accordingly,  the  father  advanced  to  the  defendant  large  sums  of 
money,  on  account  of  the  plaintiff,  and  it  was  agreed  that  the  de- 
fendant was  to  pay  back  the  money,  with  interest,  to  the  plaintiff, 
in  case  he  should  decline  the  arrangement.  The  plaintiff,  shortly 
after  attaining  age,  declined,  and  gave  notice  thereof  to  the  de- 
fendant. Held,  the  money  belonged  to  the  son,  and  could  be 
recovered  in  an  action  for  money  had  and  received.^  So  where  the 
vendee  takes  possession,  thougli  the  contract  does  not  so  provide, 
and  upon  notice  surrenders  it ;  if  a  building,  constituting  the  chief 
value  of  the  property,  is  afterwards  burned,  he  is  discliarged  from 
any  liability  for  subsequent  instalments  of  the  price,  and  may 
recover  those  paid  under  a  judgment  against  him.'"' 

1  Martin  v.  McCormick,  4  Seld.  331.  3  Johnson  r.  Johnson,  3  Eos.  &  Pull.  162. 

2  Greville   v.   Da   Costa,  Peake,   Ad.         ''  Johnson  v.  Kvaus,  S  (iill,  155. 
Cas.  113.  5  yniith  v.  M'Cluskey,  -15  Barb.  610. 

31 


482  LAW   OF   VENDORS   AND    PURCHASERS.  [CHAP.    XXX. 

3.  It  has  been  held,  that,  if  a  purchaser  has  paid  any  part  of  tlie 
purchase-money,  and  tlie  seller  refuses  to  complete  his  part  of 
the  contract,  the  purchaser  may  elect  either  to  affirm  the  contract 
by  bringing  an  action  for  its  non-performance,  or  to  disaffirm  it  ah 
initio,  and  bring  an  action  for  money  had  and  received.  Thus,  if 
there  be  a  defect  in  the  title,  which  the  vendor,  with  knowledge  of 
its  existence,  fraudulently  suppresses,  and  receives  from  him  a 
part  of  the  purchase-money,  the  purchaser  may  recover  back  such 
money  in  an  action  for  money  had  and  received.^ 

4.  But,  on  the  other  hand,  the  right  to  recover  back  money  paid 
by  the  vendee  of  real  estate,  as  such,  has  been  subjected  to  nice 
limitations.  Thus  it  is  said,  the  cases  in  which  a  vendee  may 
recover  back  money  paid  on  a  contract  for  the  purchase  of  real 
estate,  are,  1st,  where  the  rescission  is  voluntary  and  by  mutual 
consent ;  2d,  where  the  vendor  cannot  or  will  not  perform  his  part 
of  the  contract ;  3d,  where  he  has  been  guilty  of  fraud  in  making 
the  contract.^  Otherwise  where  the  vendor  is  in  no  default,  and 
the  rescission  arises  from  an  unexpected  default  of  the  vendee.^ 
And  where  a  valid  contract  was  made  to  pay  for  and  receive 
a  conveyance  of  land,  and  the  money  was  paid,  but  no  deed 
executed ;  held,  the  vendee  could  not  rescind  the  contract  and 
recover  back  the  money,  but  should  sue  on  the  agreement  as  one 
still  subsisting.*  So  the  defendant  agreed,  in  consideration  of 
XIO,  to  let  a  house  to  the  plaintiff,  which  the  latter  was  to  repair, 
and  execute  a  lease  of  it  within  ten  days ;  but  the  plaintiff  was  to 
have  immediate  possession,  and  in  consideration  of  the  premises 
to  execute  a  counterpart  and  pay  the  rent.  The  plaintiff  took 
possession  and  paid  the  XIO  immediately,  but  the  defendant  neg- 
lected to  execute  the  lease  and  make  the  repairs  beyond  the  period 
provided,  notwithstanding  which  the  plaintiff  still  continued  in 
possession.  Held,  the  plaintiff  could  not  by  quitting  the  house 
rescind  the  contract,  and  recover  back  the  XIO  in  an  action  for 
money  had  and  received ;  but  could  only  declare  for  breach  of  the 
special  contract ;  for  a  contract  cannot  be  rescinded  by  one  party 
for  the  default  of  the  other,  unless  both  can  be  put  in  statu  qiioP 

5.  Money  paid  upon  a  parol  contract  for  the  purchase  of  land, 
which  is  void  under  the  Statute  of  Frauds,  cannot  be  recovered 


1  Lyon  V.  Annable,  4  Conn.  350.  <  Fuller  v.  Hubbard,  6  Cow.  13. 

2  Battle  V.  Rochester,  &c.  5  Barb.  414.         5  Hunt  v.  Silk,  5  East,  449. 

3  Ibid.     Green  v.  Green,  9  Cow.  46. 


CHAP.    XXX.] 


CLAIM   OF   THE    VENDEE,   ETC. 


483 


back,  while  the  vendor  is  ready  and  wiUing,  on  his  part,  to  perform 
the  contract ;  ^  but  only  on  the  unwillingness  or  inability  of  the 
vendor  to  convey,  or  a  mutual  al)andonment  of  the  contract.'-^ 
Thus  the  plaintiff,  by  parol,  agreed  to  buy  of  the  defendant  a 
tract  of  land  for  *|650,  one-half  of  which  was  to  be  paid  on  a 
certain  day,  when  the  contract  was  to  be  consummated  and  posses- 
sion delivered.  The  plaintiff,  at  the  time  of  the  contract,  paid 
$50  in  part-performance,  but  on  the  day  fixed  was  unable  to  pay 
the  balance,  and  refused  to  complete  the  contract,  though  the 
defendant  was  willing  to  do  it.  Held,  the  plaintiff  could  not 
recover  the  t|50,  there  being  no  evidence  that  the  defendant  had 
assented  to  a  rescission  of  the  contract.^(a) 

6.  We  have  already,  in  connection  with  the  duty  of  the  vendor 


1  Collier  v.  Coatos,  17  Barb.  471. 

2  Sims  V.  Hutchins,  8  S.  &  M.  328. 


3  Ibid. 


(a)  When  a  party  to  a  parol  contract 
refuses  to  perform,  placing  his  refusal 
solely  upon  the  ground  of  inability,  and 
the  other  party  is  not  in  default ;  the 
former  cannot  maintain  an  action  against 
the  latter  to  recover  back  money  paid 
under  the  contract,  without  a  demand. 
Marsh  v.  Wykcoflf,  10  Bosw.  202. 

The  defendants,  assignees  of  a  bank- 
rupt, proposed  to  sell  to  the  plaintitf  a 
piece  of  land,  with  all  faults  and  defects. 
Before  any  conveyance  was  executed,  the 
plaintiff' asked  the  defendants  whether  any 
rent  had  ever  been  paid  for  the  land. 
They  replied  that  none  had  been  paid  by 
the  bankrupt,  or  by  any  person  under 
whom  he  claimed.  In  fact,  rent  had  been 
paid  by  the  person  who  had  sold  to  the 
bankrupt,  and  he  recovered  possession  of 
the  lands.  Held,  in  an  action  to  recover 
the  purchase-money,  it  was  properly  left 
to  the  jury  to  cay,  whether  the  assignees 
bo)id  Jide  believed  their  own  representa- 
tion ;  and,  the  jury  having  found  that 
they  did,  that  the  plaintiff  was  not  entitled 
to  recover.  Early  v.  Garrett,  9  Barn.  & 
Cress.  928 ;  4  Mann.  &  Ryl.  G87. 

A  county  being  about  to  erect  a  court- 
house, the  plaintiff",  being  interested  in 
having  it  located  in  a  particular  place, 
signed  a  subscription  paper,  promising  to 
pay  the  sum  affixed  to  his  name,  "for  land 
sufficient  to  set  the  court-house  upon"  at 
that  spot,  provided  it  was  located  there. 
Defendant,  the  owner  of  the  land,  there- 
upon executed  a  deed  to  the  county,  re- 
serving a  reversionary  interest  in  case  the 
county  should  at  any  time  cease  to  oc- 
cupy it  as  a  court-house.  The  plaintiff 
paid  the  amount  of  his  subscription.    The 


court-house  was  erected,  but  was  burned 
two  years  afterwards,  and  the  county  then 
determined,  that  they  would  not  rebuild 
on  that  place,  unless  they  could  have  the 
remainder  of  the  lot,  free  of  expense  to 
the  county,  and  it  was  accordingly  pur- 
chased of  the  defendant  at  a  price  equal 
to  the  whole  value  of  the  lot  previous  to 
the  first  purchase.  Held,  these  facts  did 
not  entitle  the  plaintiff"  to  sustain  assump- 
sit for  money  iiad  and  received  against  tlie 
defendant  for' the  amount  of  his  subscrip- 
tion.    Barnes  v.  Baylies,  18  Verm.  4oO. 

Where  the  plaintiff  contracted  to  pur- 
chase land,  which  the  vendor  afterwards 
conveyed  to  trustees  for  the  benefit  of  his 
creditors,  and  which  was  offered  by  them 
for  sale,  and  the  plaintiff' at  the  sale  agreed 
with  the  vendor  and  his  creditors,  that  the 
land  should  be  sold  and  the  money  held 
subject  to  the  claim  of  the  rightful  owner ; 
held,  assumpsit  for  money  had  and  re- 
ceived would  not  lie  by  the  plaintitt'against 
the  trustees.  Gaither  v.  Hetrick,  10  Ired. 
114. 

AVhere  the  obligor  in  a  bond,  condi- 
tioned to  convey  an  undivided  moiety  of 
a  mill  on  payment  of  certain  sums,  had 
disabled  himself  from  performing,  by 
mortgaging  one  undivided  half  of  the 
mill  to  a  third  person ;  held,  although  tiie 
obligee  might  thereby  be  excused  from 
tendering  performance  on  his  part,  he 
could  not  maintain  assumpsit  to  recover 
the  money  paid,  on  the  ground  tluit  the 
obligor  by  his  acts  had  rescinded  the  con- 
tract, the  facts  not  showing  clear  and  un- 
equivocal proof  of  such  rescinding  when 
the  action  was  brought.  Goddard  v.  Mitch- 
ell, 17  Maine,  300. 


484  LAW  OF  VENDORS  AND  PURCHASERS.    [CHAP.  XXX. 

to  convey  a  good  title,  considered  the  question,  as  to  the  particular 
acts  required  by  law  of  the  respective  parties,  in  reference  to  the 
execution  and  tender  of  the  deed,  by  which  a  contract  of  sale  and 
purchase  is  consummated.  It  has  been  seen,  that  the  rule  of  the 
English  law  has  been  for  the  most  part  reversed  in  this  country, 
by  requiring  the  vendor,  instead  of  the  vendee,  to  tender  the  deed. 
In  the  same  connection,  we  have  had  occasion  to  refer  to  the  duty 
of  the  vendee,  as  to  demanding  a  deed.^  To  what  has  been  already 
said  we  need  only  now  add,  that,  in  general,  the  vendee  cannot 
maintain  an  action  for  money  paid  l)y  him  as  a  deposit  on  the  pur- 
chase of  an  estate,  to  which  the  defendant  fails  to  make  a  title, 
without  showing  that  he  has  tendered  the  purchase-money  and 
demanded  a  title.^  While  on  the  other  hand  it  has  been  held, 
that,  if  the  obligor  of  a  title-bond  had  no  title  at  the  time  the  deed 
was  to  be  executed,  the  obligee  may  sue  on  the  bond  without 
having  demanded  tlie  deed.^(a) 

7.  As  to  the  time  within  which  the  vendee  may  maintain  an 
action  against  the  vendor,  it  has  been  held,  that,  in  case  of  a  bond 
for  a  deed,  to  be  delivered  in  reasonable  time  after  payment  of  a 
certain  sum  by  the  obligee ;  ninety  days  is  not  a  reasonable  time, 
though  before  action  brought  on  the  bond.* 

8.  The  defendants  gave  the  plaintiff  a  bond,  reciting,  that 
for  a  valualjle  consideration  they  had  contracted  to  sell  him  750 
acres  of  land,  to  be  selected  from  their  lots,  in  case  he  should,  at 
his  own  expense,  select  and  survey  tliat  quantity  ;  and  that  it  was 
expected  that  he  should  complete  his  selection  within  two  years 
from  the  date  of  the  bond ;  and  conditioned,  that  the  defendants, 
on  being  duly  notified  of  the  selection,  with  the  numbers  of  the 
lots,  &c.,  and  on   the  giving  up  to  them   of  the   bond,  should 

1  See  Demand.  ^  Blann  v.  Smith,  4  Blackf.  517 ;  Tar- 

2  Hudson  V.  Swift,  20  Johns.  24.  water  v.  Davis,  2  luig.  153. 

4  Aiken  v.  Saudl'ord,  5  Mass.  494. 

(a)  It  is  unnecessary  to  refer  anew  to  him,  although  prevailing  in  England,  does 

the  peculiar  doctrine  of  some  of  the  cases  not  seem  to  have  been  adopted  in  some  of 

in  New  York,  that  a  vendee  is  required  to  the  States  of  the  United  States.    In  Ohio, 

make  a  double  demand  for  a  deed.     ( See  the   rule   does   not   prevail.      The    local 

Denicmd.)  practice  ought  certainly  to  prevail,  and  to 

With  regard  to  the  American  rule  as  constitute  the  proper  guide  in  the  inter- 
to  the  tender  of  a  deed,  we  may  here  add  pretation  of  the  terms  of  a  contract.  Tay- 
the  remark  made  by  the  Supreme  Court  lor  v.  Longworth,  14  Pet.  172;  1  McLean, 
of  the  United  States,  that  the  rule  requir-  3y5. 

ing  the  purchaser  of  property  to  prepare  In  Maine,  the  vendor  must  prepare  the 

and  tender  a  deed  of  conveyance  of  the  deed.    Hill  v.  Hobart,  16  Maine,  164.    See 

property  to  the  vendor,  to  be  executed  by  Tender. 


CHAP.  XXX.] 


CLAIM  OF  THE  VENDEE,  ETC. 


485 


execute  and  deliver  to  the  plaintiff  a  good  and  sufficient  warranty 
deed  thereof.  Held,  the  bond  did  not  require  absolutely  that  the 
selection  should  be  made  and  notice  of  it  given,  within  tlie  two 
years,  but  only  within  a  reasonable  time.^(«) 

1  Tinney  v.  Ashley,  15  Pick.  54G. 


(rt)  The  followhig  miscellaneous  cases 
illustrate  the  subject  of  this  chapter,  with 
more  especial  reference  to  the  recovery  of 
a  deposit,  uj^on  the  vendor's  failure  to  com- 
ply with  his  contract :  — 

"Where  a  good  title  was  not  made  out, 
it  was  iield,  tliat  the  purchaser  was  entitled 
to  recover  his  deposit  from  the  auctioneer, 
without  notice  of  the  contract  having 
been  rescinded.  McComb  v.  Wright,  4 
Johns.  Ch.  (jo'J. 

The  plaintitf  purchased  an  estate  sold 
by  the  defendant  at  auction,  and  signed  a 
memorandum  of  agreement,  in  which  he 
was  descril)ed  as  tlie  agent  of  A.  B. ;  who, 
however,  afterwards  repudiated  the  con- 
tract. After  notice  of  this  fact  to  the 
agent  of  the  vendor,  the  plaintiff  pays  the 
deposit-money,  according  to  the  conditions 
of  sale.  The  title  proving  defective, 
held,  he  was  entitled  to  recover  the  de- 
posit in  his  own  name.  Langstroth  v. 
Toulmin,  3  Stark.  145. 

In  an  action  to  recover  a  deposit  on  the 
ground  of  a  defect  in  the  vendor's  title, 
specified  on  rescinding  the  contract;  no 
other  objection  can  be  insisted  on  at  the 
trial,  if  it  be  of  such  a  nature,  that  it 
miglit,  if  then  stated,  have  been  removed. 
Todd  V.  Hoggart,  1  IMood.  &  Malk.  128. 

In  an  action  for  money  had  and  re- 
ceived by  a  purchaser  against  the  vendor 
to  recover  back  the  deposit,  the  conditions 
of  sale  not  being  complied  with,  the  de- 
fendant, by  judge's  order,  may  obtain  a 


particidar  of  the  grounds  on  whicli  tlie 
plaintiff  relies,  to  which  the  latter  will 
be  confined  at  the  trial.  But,  if  there 
has  been  no  jjarticular,  the  ])laintiflr  may 
recover,  by  proving  a  breach  of  tlie  con- 
ditions never  before  mentioned  to  the 
defendant.  Squire  v.  Tod,  1  Camp.  Cas. 
293. 

With  regard  to  the  form  of  action,  by 
which  the  veiulee  may  recover  back  the 
purcliase -money  paid,  it  is  held,  that,  to 
warrant  an  action  for  money  had  and  re- 
ceived, to  recover  money  paid  under  a 
special  contract  to  convey  land,  as  strict  a 
performance  must  be  shown  by  the  plain- 
tiff, as  if  he  had  sued  on  the  contract; 
unless  it  has  been  either  expressly  re- 
scinded or  impliedly  so,  as  by  no'tliing 
having  been  done  under  it  for  a  long  time, 
or  bj'  the  defendant  having  acted  inconsist- 
ently witli  it.  Thus,  where  a  party  cove- 
nanted to  pay  money  for  land  by'  instal- 
ments, on  completing  which  he  was  to 
have  a  deed,  and  he  took  possession,  and 
continued  it  for  some  time,  making  partial 
payments,  but  finally  failed  to  pay,  and 
the  vendor  took  possession  ;  in  an  action 
for  money  had  and  received,  to  recover 
back  the  money  paid,  held  it  would  not 
lie.  And,  the  covenant  to  i)ay  being  inde- 
pendent, held,  no  breach,  that  tiie  defend- 
ant had  never  any  title  to  the  land;  for 
noil  constiit,  had  the  plaintitf  jiaid,  that  the 
defendant  might  not  iiave  procured  a  title 
and  conveyed.   Greeu  r.  Green,  'J  Cow.  46. 


486  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  SXXI. 


CHAPTER  XXXI. 

NOTES  AND  OTHER  SECURITIES,  GIVEN  FOR  THE  PURCHASE-MONEY  OF 
LAND  ;  ACTIONS  THEREUPON  AND  DEFENCES  TO  SUCH  ACTIONS ; 
TENDER  OF  DEED  ;  TOTAL  OR  PARTIAL  FAILURE  OF  TITLE ;  COVE- 
NANTS   OF   WARRANTY. 

1.  Having  considered  the  right  of  a  vendee  to  recover  purchase- 
money  ah'eady  paid,  where  the  vendor  fails  to  make  a  good  title  to 
the  property  sold ;  we  now  proceed  to  treat  the  same  subject  in 
another  aspect;  viz.,  the  liability  of  the  purchaser  upon  a  note  or 
other  security  given  by  him  for  the  price  of  the  land.  Upon  the 
various  questions  connected  with  this  topic,  the  authorities  are  by 
no  means  uniform,  as  will  be  seen  by  a  citation  of  the  more  prom- 
ment  and  later  cases ;  but  the  general  result  seems  to  be,  that, 
whenever  the  money,  if  actually  paid,  might  be  recovered  back, 
there,  a  fortiori,  the  party  who  would  otherwise  be  plaintiff,  stand- 
ing in  the  more  favorable  position  of  defendant,  and  therefore 
having  the  burden  of  proof  less  stringent  upon  him,  may  make  a 
valid  defence  to  an  action  upon  any  security  given  for  the  price. 

2.  Upon  this  ground,  the  law  generally  requires  a  tender  of  a 
conveyance,  in  order  to  maintain  a  suit  upon  the  security  given 
for  the  price,  (a)  Thus  if  a  note  be  given  for  the  price  of 
land,  under  a  contract  that,  if  the  note  were  paid  at  maturity, 
the  payee  would  convey  the  land  to  the  maker ;  a  tender  of 
a  sufficient  deed  is  necessary,  on  ihe  day  of  maturit}''  of  the 
note,  to  render  the  maker  liable  on  the  note  to  the  payee,  and 
a  subsequent  tender  is  insufficient.^  So  where  a  vendor  gave  the 
vendee  a  bond  for  a  deed,  on  payment  of  notes,  on  time,  given  for 
the  price  ;  held,  an  action  did  not  lie  on  the  notes,  without  making 
or  offering  to  make  a  deed  of  the  land,  or  showing  a  sufficient 
reason  for  not  doing  so.^     So,  in  an  action  on  a  sealed  note,  and 

1  M'CuUoch  V.  Dawson,  1  Cart.  413.  2  Stingle  v.  Hawkins,  8  Blackf.  435. 

(a)  It  has  been  held,  that,  in  declaring  sary  to  set  forth  the  consideration  of  the 
upon  a  note  given  for  the  purchase-money  note  and  to  aver  performance  of  the 
of  land  agreed  to  be  conveyed,  it  is  ueces-    agreement.    Perry  v.  Kice,  10  Tex.  367. 


CHAP.    XXXI.]        NOTES,   ETC.,    FOR   PURCHASE-MONEY.  487 

a  plea  that  the  consideration  was,  that  a  certain  lot  of  land  should 
be  conveyed  to  the  maker  on  tlie  payment  of  four  notes,  of  which 
all  but  the  one  in  snit  had  been  paid  ;  held,  the  ])lea  was  sufficient, 
as  the  plaintiff  had  not  offered  to  convey  on  payment.^  So  if 
several  notes,  payable  at  different  times,  be  given  for  the  price  of 
land,  under  a  contract  for  a  conveyance  upon  payment  in  full ;  a 
suit  on  the  notes,  after  they  have  all  become  due,  will  not  lie, 
without  a  conditional  tender  of  a  deed.^  So  several  notes,  paya- 
ble at  different  times,  were  given  for  the  purchase-money  of  land. 
To  an  action  on  all  the  notes  after  they  had  become  payable, 
the  defendants  pleaded  a  contract  by  them  to  pay  the  notes  as  they 
should  become  due,  and  in  that  case  the  plaintiffs  should  convey 
the  land,  &c.,  and  averred  in  the  plea,  that  the  plaintiffs  had  not 
made  or  tendered  a  deed  on  the  day  said  last  notes  became  due, 
"  according  to  the  tenor  and  effect  of  their  agreement."  Held,  on 
general  demurrer,  that  the  plea  was  good ;  that,  the  suit  not  being 
brought  on  the  notes  first  becoming  due,  until  all  the  notes  had 
become  payable,  they  became  subject  to  the  same  condition,  that 
a  conveyance  should  be  tendered,  as  those  last  becoming  due.^ 
So  in  assumpsit  on  a  note,  by  the  assignee  against  the  maker,  the 
plea  was,  that  the  note  was  given  in  consideration  of  a  lot  of  land ; 
and  set  out  a  contract,  that,  on  the  day  the  note  fell  due,  the 
payee  should  be  the  owner  of  the  lot,  and '  the  deed  be  offered 
to  the  defendant,  on  payment  of  the  note,  unless  there  was  good 
cause  for  not  making  the  offer.  The  plea  further  averred,  that 
the  deed  was  not  made  before  commencement  of  suit,  and  denied 
the  payee's  ownership  of  the  lot.  Replication,  that  the  deed  was 
tendered,  and  payment  of  the  note  demanded  and  refused,  before 
the  suit  was  commenced,  concluding  to  the  country.  Judgment 
for  the  plaintiff.  Held,  the  finding  of  the  Court,  so  far  as  this 
plea  was  concerned,  was  a  nullity,  the  plea  not  having  led  to  any 
issue  of  fact ;  also,  that  the  defendant  could  assign  as  error,  that 
this  cause,  in  which  there  were  several  pleas,  had  been  tried 
without  an  issue  to  the  plea  referred  to,  as  that  plea  was  a  valid 
defence  to  the  action.*  And  in  an  action  of  assumpsit  on  a  note, 
a  plea,  that  the  note  was  given  for  the  price  of  land,  under 
a  contract  that  a  conveyance  should  be  given  on  payment  of  the 

1  Mix  V.  Ellsworth,  5  Ind.  517.-  3  McCulloch  v.  Dawson,  1  Smith,  245. 

'■2  Hook  V.  Nebeker,  1  Cart.  257.  *  Burton  v.  Johnson,  2  Curt.  331). 


488  LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXXI. 

note  at  maturity,  and  that  no  deed  had  been  given  or  tendered  on 
the  day  of  maturity,  "  according  to  the  tenor  and  effect  of  the 
agreement ;  "  is  a  sufficient  allegation  that  the  deed  had  not  been 
tendered  on  payment  of  the  note,  on  that  day.^  So  the  plaintiff 
gave  a  bond  to  convey  to  the  defendant  a  parcel  of  land,  which  the 
defendant  had  agreed  to  purchase,  and  the  defendant  gave  a 
promissory  note  on  demand,  not  negotiable,  for  the  amount  of  the 
agreed  consideration,  but  taking  from  the  plaintiff  a  receipt,  stat- 
ing that,  if  the  bargain  should  be  rescinded,  the  note  should  be 
given  up,  upon  the  defendant's  giving  up  the  bond.  The  bond, 
note,  and  receipt  bore  the  same  date.  Held,  that  these  papers 
constituted  one  contract ;  that  the  contract  was  valid  ;  and  that  an 
action  would  not  lie  on  the  note,  without  a  previous  tender  of  a 
deed  of  the  land.^  Tlie  Court  say,  "The  plaintiff,  on  his  part, 
agreed  to  convey  the  land  to  the  defendant  when  he  should  pay 
the  purchase-money,  and  the  defendant  agreed  to  pay  the  purchase- 
money  when  the  plaintiff  should  convey  the  land.  As  no  time  for 
the  conveyance  or  for  the  payment  is  mentioned,  the  law  supplies 
the  deficiency  by  providing  that  the  contract  should  be  executed  in 
a  reasonable  time.  It  is  clear  to  our  minds  that  the  contract  is  to 
be  construed  as  containing  dependent  stipulations.  Neither  party 
intended  to  trust  to  the  personal  security  of  the  other.  If  Hunt 
had  in  a  reasonable  time  offered  to  give  a  good  deed  of  the  land, 
and  had  demanded  payment  of  the  money  mentioned  in  the  note, 
and  Livermore  had  refused  to  accept  the  deed  and  to  pay  accord- 
ing to  his  engagement,  Hunt  would  have  had  his  remedy  at  law 
against  Livermore  for  the  purchase-money.  On  the  other  hand,  if 
Livermore  had  in  a  reasonable  time  offered  to  pay  his  note,  and 
had  demanded  a  deed,  and  Hunt  had  refused  to  accept  the  money 
and  to  give  the  deed  simultaneously,  Livermore  would  have  had 
his  remedy  at  law  against  Hunt  for  the  damages  sustained  by  his 
not  conveying  the  land  according  to  his  agreement.  If  the  stipu- 
lation contained  in  the  receipt  of  the  plaintiff,  to  deliver  up  the 
note  upon  the  defendant's  delivering  up  tlie  bond,  '  provided 
the  bargain  is  not  carried  into  effect,'  were  to  be  construed  to  give 
either  party  an  election  at  his  own  pleasure  to  annul  the  contract, 
it  is  evident  that  the  contract  could  never  be  carried  into  effect 

1  McCuUoch  V.  Dawson,  1  Cart.  413.        lor  v.   Perry,   5  Blackf.  599 ;    Smith  v. 

2  Hunt    V.   Livermore,   5    Piclc.   395 ;     Henry,  2  Eng.  207. 
Warner  v.  Hatfield,  4  Blackf.  392 ;   Tay- 


CHAP.    XXXT.]        NOTES,   ETC.,   FOR  PURCHASE-MONEY.  489 

against  him  who  should  please  to  avoid  it.    It  would  in  effect  have 
no  binding  operation."  ^ 

3.  But,  although  the  law  requires  a  tender  of  a  conveyance  in 
order  to  maintain  a  suit  upon  the  security  given  for  the  ])rice, 
sucli  tender  need  not  be  absolute.  A  conditional  tender  of  the 
deed  on  })ayment  of  the  note  is  sufficient.^ 

4.  Upon  the  same  ground  it  has  been  often  held,  that  want  of 
title  in  the  vendor  is  a  good  defence  to  an  action  upon  a  note  given 
for  the  purchase-money.  Thus,  in  an  action  of  assumpsit  on  a 
promissory  note  for  the  purchase-money  of  land,  it  is  a  good 
defence  for  the  vendee  in  possession  under  a  bond  for  the  title, 
and  before  he  has  accepted  a  deed,  to  show  failure  of  the  vendor's 
title,  before  eviction ;  although  it  would  be  otherwise  after  he  has 
taken  a  deed,  with  covenants  of  warranty.^  Or  that  the  vendor  was 
not  the  owner  of  the  land,  on  the  day  when  the  deed  was  to 
be  delivered  and  the  note  paid.*  So,  in  an  action  upon  a  promis- 
sory note,  a  plea,  that  the  consideration  of  the  note  was  the  sale  of 
certain  lands  to  the  defendant,  to  which  the  plaintiff  represented 
he  had  a  good  and  valid  title,  whereas  in  fact  he  had  no  title,  is  a 
bar,^  So  the  only  consideration  of  a  promissory  note,  was  a 
promise  by  the  payee  to  convey  to  the  maker,  on  payment  of  the 
note,  a  tract  of  land,  if  the  payee  should  own  it,  and,  if  not, 
to  buy  it  of  the  owner  as  cheap  as  he  could,  and  let  the  maker 
have  it  at  cost.  The  payee  died  insolvent,  before  the  note  became 
due,  without  any  title.  Held,  the  consideration  of  this  note  had 
totally  failed,  and  the  maker  might  treat  it  as  a  nullity.^  So  the 
plaintiff  sold  to  the  defendant  a  tract  of  land,  with  a  cabin,  &c.,  and 
contracted  to  deliver  possession  in  the  same  situation  it  then  was. 
The  cabin  being  burned  before  delivery,  the  value  of  the  cabin  and 
rails  was  decreed  to  be  set  off  against  the  judgment  at  law  on  the 
bond  for  the  purchase-money.'(a) 

1  Per  Putnam,  J.,  Hunt  v.  Livermore,  son  v.  Jones,  13,  580 ;  Mobley  v.  Keys, 
6  Pick.  397.  13,  677. 

■^  Gorhani  v.  Reeves,  1  Cart.  421.  *  Gorham  v.  Reeves,  1  Smith,  239. 

3  Feemster  v.  May,  13  S.  &  M.  275 ;         -5  Myers  v.  Aikman,  2  Soam.  452. 
Wiggins  V.  McGimpsey,  13,  632;   John-         «  Tillotson  v.  Grapes,  4  N.II.  444. 

7  Combs  V.  Fisher,  3  liibb,  51. 

(rt)  Worthlessness  of  the  consideration  A.,  in  June,  1811,  agrees  to  purchase 

received  gives  no  claim  for  the  price.  Thus  a  house  of  B.  for  .£1,000,   paying  £300 

in  case  of  a  sale  of  land  for  certificates  of  a  down ;    full   possession   to   be    given    by 

corporation,  without  fraud,  though  they  the   1st  of  June,    1812.     B.    is    arrested 

proved  wortliless,  the  vendor  cannot  re-  in  June,  1811,  on  which  A.  accepts  a  bill 

cover  the  price  of  the  land.    O'Donghue  u.  for  B.  in  favor  of  B.'s  creditors,  payable 

Jones,  37  Mis.  371.  if  the  house  should  be  given  up  on  the  1st 


490 


LAW  OF  VENDOES  AND  PURCHASERS.   [CHAP.  XXXI. 


5.  Where  a  mill-seat  was  the  object  of  the  purchase  of  a  tract 
of  land,  which  is  taken  away  by  an  elder  grant,  it  is  a  good  cause 
to  rescind  the  contract,  and  may  be  pleaded  in  discount  against 
the  bond  given  for  the  consideration-money.^ 

6.  In  case  of  a  purchase  of  the  interest   of  a  vendor  in   a 

1  Gray  v.  Hankinson,  1  Bay,  278  ;  Bell  v.  Huggins,  1  Bay,  327. 


of  June,  1812.  At  B.'s  request,  A.  puts 
his  nephew  into  the  house  to  take  care  of 
it,  while  B.  remains  in  custody.  B.,  hav- 
ing a  bad  title  to  the  house,  gives  up  all 
claim  to  it,  and  A.  purchases  it  of  the 
real  owner,  being  allowed  the  £300  which 
he  had  paid  to  B.  Held,  that  the  posses- 
sion which  A.  had  of  the  house  from  B. 
was  not  such  a  compliance  with  the  con- 
dition of  the  acceptance,  as  to  support  an 
action  by  the  holder  of  the  bill  against 
A.     Swan  v.  Cox,  1  Mar.  176. 

The  plaintiff,  a  trustee  under  a  will, 
contrary  to  the  trust,  executed  to  the 
defendant,  who  knew  of  the  trust,  a  bond 
for  the  conveyance  to  him,  at  a  stipulated 
time,  of  certain  of  the  testator's  real 
estate,  taking  a  note  for  the  purchase- 
money.  Held,  a  sufficient  defence  to  a 
suit  for  an  instalment  of  the  note,  that  the 
plaintiff  never  could  make  a  valid  con- 
veyance of  the  land  to  the  defendant. 
Sweeney  v.  Sampson,  5  Ind.  465. 

Agreement,  when  certain  payments 
should  be  made,  to  convey  certain  lands. 
Two  notes  were  made  at  the  same  time, 
and  the  agreement  referred  to  the  notes. 
In  a  suit  on  the  notes,  it  being  alleged 
that  the  plaintiff  could  not  convey,  not 
having  title ;  held,  the  notes  and  the 
agreement  should  be  construed  together, 
that  the  agreement  was  not  the  real  con- 
sideration of  the  notes,  but  the  estate  to 
be  conveyed,  and,  if  the  plaintiff  could 
not  give  a  good  title,  there  was  a  failure 
of  consideration.  Davis  v.  McVickers,  11 
111.  327. 

At  the  time  of  giving  a  note  for  the 
conveyance  of  land,  it  was  agreed  in 
writing,  that  if,  before  the  maturity  of  the 
note,  it  should  be  proved  that  the  grantor 
had  no  title,  the  note  should  not  be  paid. 
Held,  the  maker  might  set  up  such  agree- 
ment, in  defence  to  a  suit  brought  on  the 
note,  by  one  to  whom  it  was  indorsed  be- 
fore maturity,  with  notice  of  the  stipula- 
tion.    Bean  v.  Flint,  30  Maine,  224. 

Where  a  note  was  given  on  a  sale  of 
real  estate,  to  which  the  vendor  had 
neither  title  nor  color  of  title,  nor  posses- 
sion ;  held,  there  was  no  consideration 
for  the  note,  and  a  guarantor  thereof,  the 
guaranty  being  made  when  the  note  was 


given  and  without  consideration,  was  not 
hable.    Fisher  v.  Salmon,  1  Cal.  413. 

In  an  action  of  assumpsit  on  a  note  for 
the  price  of  land,  under  an  agreement 
that,  if  the  note  were  paid  at  maturity, 
the  payee  would  convey  the  land,  an  alle- 
gation in  the  plea,  tliat  the  payee  was  not, 
when  the  note  was  executed,  nor  had  been 
from  thence  hitherto,  the  owner  in  fee  of 
the  land,  is  a  sufficient  denial  that  he  was 
the  owner  at  the  day  of  maturity  of  the 
note.     Gorham  v.  Beeves,  1  Cart.  421. 

Where  the  defendant  pleaded  that  the 
notes  sued  on  were  given  for  land,  and 
that  the  consideration  had  failed,  by  rea- 
son of  the  plaintiffs  having  no  title ;  held, 
a  judgment  in  favor  of  the  plaintiff  for 
the  purchase-money,  and  a  decree  in  favor 
of  the  defendant  for  the  land,  would  not 
preclude  the  defendant  from  his  remedy 
against  the  plaintiff,  if  the  land  within  the 
metes  and  bounds  should  prove  to  be  less 
than  was  contracted  for,  and  if  the  de- 
fendant was  deceived  by  the  plaintiff  as 
to  the  quantity.  Tison  v.  Smith,  8  Tex. 
147. 

Action  upon  a  promissory  note,  paya- 
ble twelve  months  after  date,  by  an  as- 
signee. Plea,  that  the  note  was  assigned 
after  it  became  due,  and  that  the  consider- 
ation was  a  bond  of  the  same  date  ex- 
ecuted by  the  payee  to  the  makers,  to 
convey  certain  lands  by  deed,  in  fee- 
simple,  with  general  and  special  warranty, 
within  four  months  from  the  date  of  the 
note,  and  that  the  payee  did  not  within 
that  time  convey  the  lands  according  to 
his  covenant,  and  therefore  the  considera- 
tion of  the  note  had  failed.  Held,  a  bar. 
So,  likewise,  a  plea,  setting  forth  the  same 
facts,  except  the  failure  to  convey,  and 
averring  that  the  payee,  neither  at  the 
date  of  the  note,  nor  within  said  four 
months,  had  any  legal  title  to  the  lands. 
So  a  plea,  setting  forth  the  same  facts  as 
the  first  plea,  except  in  alleging  that  the 
payee  had  not  conveyed  the  premises,  and 
it  was  out  of  his  power  to  convey  them 
according  to  his  covenant,  because  of 
certain  judgments  against  him,  which 
were  liens  on  the  premises.  Tyler  v. 
Young,  2  Scam.  444. 


CHAP.    XXXI.]        NOTES,    ETC.,   FOR   PURCHASE-MONEY.  491 

remainder  in  fee,  expectant  on  an  estate  tail ;  if  at  the  time 
of  the  contract  the  tenant  in  tail  had  actually  suffered  a  re- 
covery, of  which  both  parties  were  ignorant  till  after  the  convey- 
ance had  been  executed,  and  an  absolute  bond  given  for  the  pur- 
chase-money ;  equity  will  rescind  the  contract,  and  order  such 
bond  to  be  delivered  up  to  be  cancelled,  and  that  all  interest  paid 
on  it  shall  be  refunded.  But  the  costs  were  not  allowed  on 
either  side.^(a) 

7.  A  promissory  note  was  made  for  the  purchase-money  of  land, 
conveyed  by  deed  with  warranty.  At  the  time  of  the  conveyance 
there  was  a  judgment  against  the  grantor,  under  which  the  land 
was  afterwards  sold  and  conveyed.  Held,  an  action  on  the  note 
could  not  be  maintained,  as  the  consideration  had  wholly  failed  ; 
the  title  of  the  promisor  being  extinguished  by  the  sale  under  the 
judgment,  though  he  had  not  yet  been  evicted ;  for  he  was  liable 
to  be  evicted,  and  was  responsible  for  the  mesne  profits.^ 

8.  Upon  the  same  principle,  a  partial  want  or  failure  of  title  has 
been  usually  held  to  constitute  a  partial  defence  to  a  suit  upon  a 
note  given  for  the  purchase-money.  Thus,  in  an  action  upon 
a  note,  given  for  the  purchase-money  of  land,  over  and  above  the 
amount  of  a  mortgage  on  the  land,  represented  by  the  vendor  to 
be  a  certain  sum ;  if  the  sum  due  at  the  time  exceeded  that 
amount,  the  excess  will  be  deducted  from  the  amount  of  the 
note.^(5)  So  A.  covenanted  with  B.  to  give  him  "  a  good  sufficient 
general  warranty  deed  "  of  a  piece  of  land,  and  B.  paid  a  part  of 
the  purchase-money,  and  gave  his  note  for  the  balance.  A.  sued 
the  note,  and  B.  filed  a  bill  in  equity  for  specific  performance,  as 
A.  had  tendered  a  deed,  which  reserved  a  right  in  C.  to  dam  up  a 
stream  running  through  the  land,  but  which  was  known  to  B. 
when  he  purchased.  Held,  that  by  this  reservation  A.'s  covenant 
was  broken,  as  he  was  bound  to  make  a  title  clear  from  all  incum- 
brances, and  that  this  breach  was  a  good  defence  to  the  action  on 
the  note,  and  a  good  ground  for  the  bill  in  equity.  The  measure 
of  damages  was  held  to  be  the  deterioration  of  the  land  by  the 

1  Hitchcock  V.  Giddings,  4  Price,  135.  3  Stiles  v.  Sherman,  34  Maine,  344. 

2  Frisbee  v.  Hoffnagle,  11  Jolins.  50. 

(a)  Where  a  contract  for  the  sale  of  [h]  Where  a  vendor  is  unable  to  make 
land  is  rescinded  in  equity,  the  vendee  is  title  for  all  that  he  has  covenanted  to 
discharged  from  tlie  payment  of  his  pur-  convey,  the  vendee  has  an  equitable  right 
chase-money,  and  entitled  to  have  his  to  an  abatement  out  of  the  unpaid  pur- 
bond  given  up.  Lowder  v.  Noding,  8  chase-money.  Barnes's,  &c.,  46  Penn 
Ired.  Eq.  208.  350. 


492  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXI. 

existence  of  this  easement,  and  the  fact,  of  B.'s  knowledge  of  the 
easement  was  held  not  to  affect  A.'s  covenant.^  So  in  a  suit  by 
the  assignee  of  a  note  against  the  maker,  the  plea  was,  that  the 
note  was  given  for  part  of  the  consideration  of  the  sale  of  several 
pieces  of  real  property,  of  which  a  deed  with  covenants  of  clear 
title  and  warranty  was  executed  at  the  time  of  sale ;  that  at  that 
time  two  of  them  were  incumbered  by  judgments  and  mortgages 
amounting  to  more  than  the  note ;  that  the  defendant,  to  save 
them,  had  been  compelled  to  pay  off  the  incumbrances  ;  that  the 
note  was  for  the  only  unpaid  part  of  the  purchase-money  ;  and 
that  the  payee  was  insolvent ;  wherefore  the  consideration  of  the 
note  had  failed.  The  replication  was,  that  the  defendant  paid  the 
incumbrances  and  the  balance  of  the  purchase-money,  after  notice 
of  the  assignment  of  the  note.  Held,  the  plea  was  good,  and  the 
replication  bad.^ 

9.  Evidence  of  fraudulent  representations  by  the  payee  of  a 
promissory  note,  as  to  the  value  of  the  land  for  which  the  note 
was  given,  has  been  held  admissible  to  show  a  partial  failure  of 
consideration,  in  a  suit  brought  by  one  to  whom  the  note  was  in- 
dorsed after  it  was  overdue.^ 

10.  The  general  rule  above  stated,  however,  is  subject  to  quali- 
fications and  exceptions,  growing  out  of  the  language  of  the  con- 
tract or  the  circumstances  of  the  case.  Thus  it  is  held  to  be  no 
defence  to  an  action  by  the  payee  against  the  maker  of  a  promis- 
sory note,  that  the  payee  had  agreed  to  convey  an  estate  to  the 
maker,  in  consideration  of  a  sum  of  money  then  paid  or  secured 
to  be  paid  to  the  maker  (being  the  sum  mentioned  in  the  note) 
and  of  a  further  sum  to  be  paid  at  a  future  day,  and  that  such 
estate  had  never  been  conveyed.*  So,  when  a  bond  is  given  to 
convey,  on  payment,  with  a  right  in  the  purchaser  to  take  posses- 
sion and  hold  till  some  failure  on  his  part,  and  notes  are  given  to 
secure  annual  payments ;  those  notes  are  recoverable,  wliether  the 
purchaser  takes  possession  or  not ;  although  it  would  be  other- 
wise, if  the  obligor  had  conveyed  away  his  title,  so  as  not  to  be 
able  to  fulfil  the  bond.^  So  a  defendant  cannot  resist  payment  of 
a  note  given  in  purchase  of  a  house  and  lot,  on  the  ground  that 
the  plaintiff  had  no  title,  if  the  defendant  remain  in  possession.*^ 

1  Morgan  v.  Smith,  11  111.  194.  5  Chandler  v.  Marsh,  3  Verm.  161. 

2  Doremus  v.  Bond,  8  Blackf.  368.  6  isier  v.  Egger,  17  Mis.  382 ;  Helven- 

3  Coburn  v.  Ware,  30  Maine,  202.  stein  v.  Higgason,  35  Ala.  259. 

4  Spiller  V.  Westlake,  2  B.  &  Ad.  155. 


CHAP.    XXXI.]        NOTES,    ETC.,    FOR   PURCHASE-MONEY.  403 

So  a  vendee  who  takes  and  retains  possession,  nnder  a  parol  con- 
tract of  purchase,  cannot  defeat  a  recovery  on  his  note,  given  for 
the  purchase-money,  on  the  ground  of  want  or  failure  of  considera- 
tion, it  not  appearing  that  the  vendor  has  failed  or  refused  to  com- 
ply with  his  contract.^  So  a  purchaser  who  has  paid  part  of  the 
purchase-money,  and  given  a  bond  for  the  residue,  and  is  in 
undisturbed  possession,  will  not  be  relieved  against  payment  of 
the  bond,  or  proceedings  on  the  accompanying  mortgage,  on  the 
mere  ground  of  a  defect  of  title,  there  being  no  allegation  of  fraud 
in  the  sale,  nor  any  eviction  ;  but  must  seek  his  remedy  at  law,  on 
the  covenants  in  his  deed.^  So,  where  land  was  conveyed  upon 
condition  that  the  deed  should  be  void,  if  the  notes,  which  were 
the  consideration  for  the  deed,  should  be  paid  before  a  specified 
time,  and  the  notes  were  not  paid  at  the  time ;  held,  the  condition 
constituted  no  defence  to  an  action  on  the  notes.^  So,  if  A.  gives 
a  bond  to  convey  land  to  B.,  upon  payment  of  the  purchase-money, 
and  receives  notes  for  the  purchase-money,  and  afterwards  sells 
the  same  land  to  C. ;  B.  cannot  therefore  avoid  payment  of  the 
notes,  because,  payment  being  a  condition  precedent,  A.  is  not  in 
default  until  payment.*  So  w^hen  the  grantee  in  a  quitclaim  deed 
gives  his  note  for  the  consideration,  with  a  written  agreement  that 
he  shall  pay  the  note,  unless  within  twelve  months  he  shall  make 
it  appear,  by  due  course  of  law,  that  neither  the  grantor  nor  his 
wife  have  any  claim,  as  heirs,  to  the  land ;  the  grantee  cannot 
defend  an  action  on  the  note,  unless  he  has  complied  with  the 
agreement.^(a)  So,  in  an  action  on  a  promissory  note,  it  was 
agreed  between  the  plaintiff  and  defendant,  that  the  former  would 
convey  to  the  latter  certain  land,  if  certain  notes,  given  at  the 
same  time,  should  be  paid  at  maturity ;  and,  on  failure  of  such 
payment,  the  agreement  to  be  void ;  and  the  defendant  to  pay  all 
damages,  and  forfeit  any  previous  payments.  Held,  the  notes  and 
the  promise  to  convey  were  independent,  and  this  suit  might  be 

1  Gillespie  v.  Battle,  15  Ala.  276.  *  Foster  v.  Jared,  12  111.  4-51. 

2  Abboft  V.  Allen,  2  Johns.  Ch.  523.  5  Carter  v.  Harber,  18  Mis.  204. 

3  Hodsdon  v.  Smith,  14  N.H.  41. 

(a)  Tlie  promisee  in   a   note,  by   an  land.      Held,  this  agreement  (assuming 

agreement   under   seal,  executed  on  the  that  the  note  and  agreement  constituii'd 

same  day  with  the  note,  covenanted  with  an   entire   transaction,   which    the   C'mirt 

the  promisor,  that,  "if  said  note  should  did   not    decide)    did    not    jireclude    the 

not  be  paid  at  the  expiration  of  the  said  promisee  from  enforcing  payment  of  the 

ten  j^ears,"  he  would  "give  up  said  note  "  interest,  and  such  instalments  as  should 

to  the  promisor,  provided  the  latter  sliould  become  due,  before  the  exjjiration  of  the 

execute  to  him  a  quitclaim  deed  of  certain  ten  years.     Ewer  v.  Myrick,  1  Cush.  IG. 


494  LAW    OF   VENDORS   AND    PURCHASERS.        [CHAP.   XXXI. 

maintained,  without  showing  a  conveyance  or  offer  to  convey ; 
and  that,  by  enforcing  the  notes,  the  plaintiff  waived  the  right  to 
avoid  liis  covenant  to  convey  and  claim  damages,  although  origin- 
ally he  might  elect  between  the  two  modes  of  relief.^  So  in  an 
action  upon  a  note  given  for  the  price  of  land,  the  defendant  can- 
not be  allowed  to  prove,  by  way  of  recoupment  in  damages,  that 
the  plaintiff  made  false  representations  as  to  the  quality  and  pro- 
ductiveness of  the  soil,  and  the  number  of  acres  contained  within 
boundaries  which  were  truly  pointed  out,  by  which  the  defendant 
was  deceived  and  thereby  induced  to  make  the  purchase.^ 

11.  A  note,  founded  on  the  payee's  agreement  to  convey  to  the 
promisor  land  belonging  to  a  third  person,  the  payee  having  notice 
of  such  ownership,  is  not  invalid  for  want  of  consideration  ;  if  the 
owner  conveys  to  the  promisor,  in  execution  and  pursuance  of 
the  contract,  and  the  promisor  accepts  the  title.^  So  the  plaintiff, 
holding  a  written  agreement  of  A.  that  he  would  convey  to  the 
plaintiff  certain  premises,  sold  them  by  parol  to  the  defendant, 
with  the  assent  of  A.,  and  the  name  of  the  defendant  was  by 
mutual  consent  inserted  in  the  written  agreement  of  A.,  in  the 
place  of  the  plaintiff.  It  afterwards  appeared,  that  A.  had  no 
title.  Held,  in  an  action  on  a  note  given  for  the  price,  the  defend- 
ant could  not  set  up  a  failure  of  consideration,  for  between  the 
plaintiff  and  defendant  the  agreement  was  completely  executed, 
and  the  defendant  acquired  all  the  title  which  the  plaintiff  pre- 
tended to  have,  or  assumed  to  sell,  and,  by  the  agreement  for 
which  the  note  was  given,  the  defendant  became  entitled  to  demand 
the  deed  of  A.^  So,  where  a  purchaser  executed  a  note,  at  the 
request  of  the  vendor,  to  a  stranger,  for  the  purchase-money; 
held,  he  could  not  defend  an  action  on  the  note,  on  the  ground  of 
failure  of  consideration,  because  the  vendor  had  not  conveyed  the 
legal  title  to  him.^  So,  where  the  trustees  of  a  land  company,  in 
whom  the  legal  title  to  the  land  owned  by  the  company  was  vested, 
received  a  promissory  note  of  a  purchaser  of  a  lot,  and  agreed  to 
convey  the  same  to  him  on  payment  of  the  note,  and  afterwards 
one  of  the  trustees  relinquished  his  trust,  and  made  a  conveyance 
of  his  interest  in  the  land  of  the  company  to  the  other  trustees ; 
it  was  held,  that,  notwithstanding  such  relinquishment  and  con- 

1  Manning  v.  Brown,  1  Fairf.  51.  *  Condrey  v.  West,  11  111.  146. 

2  Gordon  v.  Parmelee,  2  Allen,  212.  5  Glascock  v.  Rand,  14  Mis.  550. 

3  Trask  v.  Vinson,  20  Pick.  105,  110. 


CHAP.    XXXI.]        NOTES,    ETC.,    FOR   PURCHASE-MONEY.  495 

veyance,  an  action  might  be  maintained  on  the  note  in  the  name 
of  all  the  trustees. 1 

12.  In  an  action  upon  a  bill,  drawn  by  one,  who  agrees  to  exe- 
cute a  lease,  upon  the  proposed  lessee,  for  the  agreed  consideration, 
and  accepted  by  the  latter,  who  also  takes  possession  ;  it  is  no  de- 
fence, that  the  former  refused  to  execute  the  lease.  The  remedy 
is  on  the  agreement.^ 

13.  It  is  also  held,  that  o,  partial  failure  of  title  to  land  conveyed 
constitutes  no  defence  to  a  note  given  in  payment  for  it.^  Thus 
the  plaintiff,  having  a  patent  for  land,  sold  the  land  to  the  defend- 
ant, giving  him  a  bond  for  a  good  deed  on  payment  of  the  pur- 
chase-money, for  which  the  defendant  gave  his  note.  In  an  action 
on  the  note,  the  defendant  relied  upon  an  equity  in  A.,  by  showing 
a  receipt  to  A.,  from  the  land-office,  of  money  paid  by  him  for  the 
land.  Held,  the  bond  was  a  good  and  valuable  consideration  for 
the  note,  which  was  not  impaired  by  the  equity  in  A.'* 

14.  And  this  rule  more  especially  prevails,  where  the  purchaser 
is  himself  in  fault  with  respect  to  the  defect  of  title.  Thus  the 
plaintiff  and  defendant  entered  into  a  written  agreement,  the 
latter  to  sell  and  the  former  to  buy  a  tract  of  land  for  82,000, 
possession  to  be  given  on  the  1st  of  May,  when  $1,000  was  to  be 
paid.  Tlie  land  was  under  mortgage,  but  on  the  1st  of  May  a 
release  of  the  mortgage  was  prepared  to  be-  delivered  when  the 
$1,000  was  paid.  On  the  15th  of  May,  the  plaintiff  gave  to  the 
defendant  his  note  for  $175  in  part-payment  of  the  purchase- 
money,  which  the  defendant  transferred,  and  the  plaintiff  was 
obliged  to  pay.  The  plaintiff  brings  this  action  to  recover  the 
money.  Held,  he  could  not  recover.^  So  A.  executed  to  B.  a 
note  for  the  price  of  land,  on  which  C.  had  a  mortgage.  The  note 
was  to  be  paid  by  instalments,  to  meet  the  instalments  on  the 
mortgage.  A.  failed  to  pay  the  note,  by  which  means  B.  was  pre- 
vented from  paying  the  mortgage.  The  mortgage  was  therefore 
foreclosed,  and  A.  became  the  purchaser  of  the  land,  under  the 
mortgage.  Held,  that  A.,  by  his  own  fault,  had  caused  the  failure 
to  pay  the  mortgage,  and  therefore  could  not  set  up  these  facts  as 
a  defence  to  the  note.^ 

15.  In  an  action  on  a  note  for  the  purchase-money  of  land,  it  is 

1  Cartwright  v.  Gardner,  6  Cush.  273.  4  Long  v.  Allen,  2  Florida,  403. 

2  Moggridge  v.  Jones,  14  E.  486 ;   3  5  Garlock  v.  Lane,  15  Barb.  359. 
Camp.  Ca.  38.  6  Clark  v.  Condit,  11  Mis.  79. 

3  Morrison  v.  Jewell,  34  Maine,  146. 


496  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXI. 

no  defence  for  the  grantee  to  set  up  a  title  whicli  he  has  made  by 
the  purchase  of  a  prior  incumbrance,  beyond  the  amount  paid 
for  such  incumbrance ;  whether  he  purchased  the  incumbrance 
directly,  or  was  substituted  for  the  purchaser  at  a  sheriff's  sale ; 
and  the  grantee  may  be  enjoined  by  a  Court  of  Equity  from  setting 
up  such  a  title  against  the  vendor,  in  an  action  at  law  on  the 
note.i 

16.  A.,  the  owner  of  land,  contracted  verbally  for  the  sale  of  it 
to  B.,  and  B.  sold  it  to  C,  who  received  a  conveyance  from  A., 
with  general  warranty,  and  executed  his  bonds  to  B.  for  a  balance 
of  the  purchase-money.  At  the  time  of  the  sale,  the  lot  was  ren- 
dered more  valuable  by  a  change  in  a  street,  which  street  was 
afterwards  restored  to  its  original  location  by  the  town  authorities. 
Held,  that  B.,  having  made  no  representations  to  C,  and  not 
having  been  guilty  of  any  fraud,  and  having  made  no  warranty  of 
title,  was  not  liable  to  C.  for  any  damage  he  had  sustained ;  and 
that  C.  could  not  enjoin  the  collection  of  the  purchase-money. ^(a) 

17.  The  question  has  often  arisen,  whether,  in  an  action  upon  a 
promissory  note,  given  for  the  purchase-money  of  land,  which  is 
conveyed  by  deed  with  covenants  of  warranty  ;  the  maker  of  such 
note  may  set  up  as  a  defence,  in  whole  or  in  part,  the  breach  of 
those  covenants ;  and  also  whether  this  may  be  done,  only  after 
an  eviction  or  disturbance  by  virtue  of  an  adverse  title  to  which 
such  covenants  apply,  or  simply  by  showing  the  existence  of  the 

1  Champlin  v.  Dotson,  13  S.  &  M.  553.         2  pHce  v.  Ayers,  10  Gratt.  575. 

(rt)  The  law  of  Mississippi  gives  the  edge  of  tlie  first  purchaser.     Wiggins  v. 

nialter  of  a  promissory  note  tlie  benefit  of  McGinipsey,  13  S.  &  M.  532.     Neither  is 

all    defences,   of  want    of   consideration,  it  a  defence  that  the  land  has  been  sold 

failure   of  consideration,   payments,    dis-  under  a  judgment  rendered  prior  to  the 

counts,  and  set-offs,  against  an  indorsee,  sale,  where  the  land  had  been  reconveyed 

which  he  had  against  the  payee,  previ-  to  the  grantor,  and  the  grantee  knew  his 

ously  to  notice  of  the  indorsement.     Brab-  note  to  be  in   the   hands   of  a   bond-Jide 

ston  V.  Gibson,  9  How.  263.     But  it  is  no  holder.     Wiggins  v.  McGimpsey,  13  S.  & 

defence,  in  an  action  on  a  note  in   the  M.  532. 

hands    of    a  bond-Jide   holder  for   value,  On  the  sale  of  a  plantation,  in  Louis- 

without  notice,  that  it  was  given  for  the  iana,  tlie  vendor  reserved   the   right   of 

purchase  of  the  equitable  title  to   land,  redemption,  which  right,  according  to  the 

from  which  the  maker  has  been  ejected  laws    of   Louisiana,    may    be    exercised 

by  a  judgment  at  law,  he  knowing  at  the  against    a    bond-fide    purchaser,    without 

time  of  the  purchase  tliat  he  bought  but  notice  of  the  right.     Notes  were  given  for 

an  equitable  title.     Green  v.  AIcDonald,  the  purchase-money,  payable   in  Missis- 

13  S.  &  M.  445.      So  the  resale  or  re-  sippi,  and  secured  bj'  a  mortgage  of  the 

scission  of  a  sale  of  lands  is  no  defence  to  plantation.     These  notes  were  afterwards 

an   action   on   a  note   for   the   purchase-  indorsed     in     Mississippi,     without     the 

money,  brought  by  a  bonu-fide  holder  of  knowledge   of    the   maker,   as    collateral 

the  note,   who  became   such   before   the  security  for  a  debt  due  from  the  payee  to 

resale  or  rescission,  and  with  the  knowl-  the  indorsee.     The  vendor  redeemed  the 


CHAP.    XXXI.]        NOTES,    ETC.,   FOR   PURCHASE-MONEY.  497 

adverse  title.     Upon  this  subject  the  decisions  in  different  States 
have  been  somewhat  diverse. 

18.  By  the  Supreme  Court  of  the  United  States  it  has  been 
held,  that,  where  a  promissory  note  was  given  for  the  purchase  of 
real  property,  the  failure  of  consideration  through  defect  of  title 
must  be  total,  in  order  to  constitute  a  good  defence  to  an  action 
on  the  note.  And  it  was  doubted,  whether,  after  receiving  a  deed, 
the  party  could  avail  liimself  even  of  a  total  failure  of  considera- 
tion. But  where  the  note  is  given  with  full  knowledge  of  the 
extent  of  the  incumbrance,  and  the  party  thus  consents  to  receive 
the  title,  its  defect  is  no  legal  bar  to  an  action  on  the  note.  And 
any  partial  defect,  in  the  title  or  the  deed,  is  not  inquirable  into 
by  a  Court  of  Law,  in  an  action  on  the  note ;  but  the  party  must 
seek  relief  in  chancery.^ 

19.  In  Massachusetts  it  has  been  doubted,  whether,  in  an  action 
by  the  promisee  upon  a  negotiable  promissory  note,  given  for  the 
purchase-money  of  land  conveyed  by  warranty  deed,  it  is  com- 
petent to  set  up,  by  way  of  defence,  a  total  want  of  title  in  the 
grantor  at  the  time  of  the  conveyance,  and  an  eviction  of  the 
grantee.  But,  where  the  promisee  had  died  insolvent,  and  the 
action  was  brought  by  the  administrator  of  an  indorsee,  who,  at 
the  time  of  the  indorsement,  had  notice  that  the  title  was  ques- 
tioned ;  such  defence  was  allowed  under  the-  general  issue,  since 
the  defendant  could  not  plead  the  demand  on  the  covenants  by 
way  of  set-off,  or  avail  himself  of  it  in  a  cross-action  ;  and  in  such 
case  the  plaintiff  may  introduce  evidence,  that  the  value  of  the 
land,  at  the  time  of  eviction,  was  less  than  the  amount  of  the 
note.^ 

20.  In  Maine  it  has  been  held,  in  an  action  by  the  payee  upon 
a  note  given  for  land  conveyed  by  warranty  deed,  that  it  is  not 
competent  to  set  up  a  partial  or  total  failure  of  title,  or  a  want  of 
title,  in  the  grantor,  at  the  time  of  the  conveyance.  And  where 
the  deed  contained  an  express  condition,  that,  upon  breach  of  any 
covenant  therein,  the  damages  might  be  payable  by  cash  to  the 

1  Greenleaf  v.  Cook,  2  Wheat.  13.  2  Knapp  v.  Lee,  3  Pick.  452. 

plantation,  and  agreed  to  assume  the  out-  Louisiana  on  the  notes  by  tlie  indorsee 

standing   notes,   and    gave    the    original  against   the    maker.      So,    altiiougli    the 

vendee  a  mortgage  on  tlie  plantation  to  notes  were  indorsed  "  ne  varietur  "  by  the 

secure  tlieir  payment.     Held,  that  those  notary,  at  the  time  of  the  original  sale  of 

facts  constituted  no   defence,  under  the  the   plantation.      Brabston  v.   Gibson,  9 

statute  of  Mississippi,  to  a  suit  brought  in  How.  263. 

32 


498  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXI. 

amount  received  in  money,  and  the  residue  by  delivering  up  such 
of  the  notes  as  should  remain  unpaid ;  in  an  action  upon  one  of 
such  notes,  some  having  been  paid,  the  defendant  was  not  per- 
mitted to  show  a  breach  in  the  covenant  of  seisin  as  to  part  of  the 
land,  to  the  value  of  the  note  declared  on.^  So  an  action  was 
brought  upon  a  promissory  note,  given  as  the  consideration  of 
land  conveyed  with  the  usual  covenants  of  seisin,  of  warranty,  and 
against  incumbrances.  At  the  time  of  the  conveyance  there  was 
an  attachment  upon  the  land  ;  afterwards  judgment  was  rendered 
in  the  suit,  and  the  execution  levied  upon  the  whole  of  the  land 
conveyed.  The  grantee  did  not  redeem,  but  suffered  a  title  to  be 
acquired  under  the  levy ;  but  it  was  not  shown  that  the  land  was 
appraised  at  its  full  value,  nor  that  the  grantee  had  not  received 
rents  and  profits.  Held,  a  total  failure  of  consideration  for  the 
note  was  not  shown.  And  a  partial  failure  of  title  would  not,  it 
seems,  constitute  a  defence  pro  tanto.^  And,  in  a  still  later  case,  it 
is  said  not  to  have  been  authoritatively  settled,  that  a  total  want 
of  title  will  not  be  a  good  defence  to  such  note,  except  in  the 
hands  of  an  innocent  indorsee.  But  where  the  conveyance  is  by 
deed  with  covenants  of  warranty,  the  defect  of  title  must  be  entire, 
so  that  nothing  valuable  passes  by  the  conveyance.  Otherwise  it 
becomes  a  case  of  unliquidated  damages,  and  the  remedy  is  by  an 
action  of  covenant  broken.^(a) 

21.  In  New  Hampshire,  in  case  of  a  warranty  deed,  a  partial 
failure  of  title  will  not  constitute  a  defence  to  the  note,  but  the 
remedy  must  be  by  suit  on  the  covenants.^ 

22.  In  New  York,  a  plea  of  want  of  seisin,  in  a  vendor  who  has 
conveyed  with  a  covenant  of  seisin,  is  no  bar  to  an  action  of  debt 
on  a  bond  given  for  the  purchase-money.  Where  the  purchaser 
has  acquired  any  estate  or  interest  whatever,  or  obtained  any  ben- 
efit by  the  conveyance,  he  cannot  plead  want  of  seisin  ;  but  must, 
with  his  plea,  give  notice  of  the  facts  he  relies  upon,  to  reduce  the 
amount  of  the  recovery  as  for  a  partial  failure  of  consideration. 
Where  there  has  been  an  eviction,  and  the  purchaser  is  liable  to 

1  Lloyd  V.  Jewell,  1  Greenl.  352.  3  Jenness  v.  Parker,  24  Maine,  289. 

2  AVe'ntworth  v.  Goodwin,  21  Maine,  ■*  Chase  v.  Weston,  12  N.H.  413. 
150. 

(a)  In  case  of  a  conveyance  by  deed  when  it  was  but  an  estate  for  life  or  for 
of  release  and  quitclaim,  without  covenants,  years  ;  nothing  short  of  a  total  failure  of 
it  is  not  a  good  defence,  that  the  plaintiff  title  being  in  such  case  a  sufficient  de- 
represented  liis  title  to  be  in  fee-simple,  fence.    Howard  v.  Witham,  2  Greenl.  390. 


CHAP.    XXXI.]        NOTES,    ETC.,    FOR   PURCHASE-MONEY.  499 

the  true  owner  for  mesne  profits,  to  an  amount  equal  to  the  sum 
demanded  of  him  by  his  vendor,  he  may  plead  such  facts  in  bar  of 
the  action,  as  showing  a  total  failure  of  consideration  ;  but  it  is 
doubted  whether  a  total  or  partial  failure  of  consideration  by  reason 
of  defect  of  title  can  be  shown,  where  the  conveyance  was  with 
warranty,  and  there  has  not  been  an  eviction.  And  the  general 
doctrine  is  laid  down,  that,  where  a  sale  has  been  consummated  by 
a  deed,  without  fraud  or  deceit,  the  purchaser  cannot  by  his  own 
act  repudiate  the  contract ;  he  must  apply  to  chancery  ;  and  even 
that  court  will  not  in  general  interfere,  if  there  be  covenants  in 
the  deed.i 

23.  In  Mississippi,  there  must  be  a  total  failure  of  consideration, 
and  an  actual  eviction,  or  what  is  equivalent  thereto,  to  enable  the 
maker  of  a  note,  given  for  the  purchase-money  of  land,  who  is  in 
possession  under  a  deed  containing  a  general  covenant  of  warranty, 
to  avail  himself  of  the  failure  of  his  title  as  a  defence  to  an  action 
at  law  upon  the  note.^  In  Alabama,  neither  fraud  nor  failure  of 
consideration  is  a  good  defence  at  law  to  a  note  given  for  the 
purchase-money  of  land,  when  the  vendee  has  accepted  from  the 
vendor  a  deed  with  covenant  of  warranty.^  In  Indiana,  the  ex- 
istence of  incumbrances  upon  land,  conveyed  with  a  covenant  against 
incumbrances,  is  no  defence  to  a  suit  on  a  note  given  for  the 
purchase-money,  unless  the  purchaser  has  been  evicted  or  has  paid 
money  to  remove  the  incumbrance.'*  Thus  to  an  action  upon  such 
note,  it  was  pleaded  in  bar,  that  the  land  was  conveyed  with  a 
warranty  against  incumbrances  ;  that  it  was  then  subject  to  unpaid 
taxes,  unknown  to  the  grantee ;  and  had  since  been  sold  therefor 
and  a  certificate  given  to  the  purchaser.  Held,  the  plea  was  bad, 
as  showing  no  eviction,  nor  that  the  land  might  not  be  redeemed.^ 
But  in  Illinois,  in  an  action  on  a  note,  a  breach  of  covenant  of 
warranty  in  a  deed  of  land,  for  the  price  of  which  the  note  was 
given,  is  a  sufficient  defence. ^(a) 

.     1  Tallmade  v.  Wallis,  25  Wend.  107.  *  Clark  v.  Snelling,  1  Cart.  382 ;  Wiley 

2  Glenn  ;;.  Thistle,  23  Miss.  42.  v.  Howard,  15  Ind.  169. 

8  Patton  V.  England,  15  Ala.  69.  5  Streeter  v.  Henley,  1  Cart.  401. 

6  Slack  V.  McLagan,  15  111.  242. 

(a)  In  connection  with  the  subject  of  So,  where  land  is  convej'ed  with  cove- 

covenants,  treated  in  the  te.xt,  it  may  be  nant  of  warranty,  and  the  purchasers  are 

added,  that,  in  a  scire  facias  suit  upon  a  evicted  from  part  of  the  premises,  or  a 

mortgage,  the  mortgagor  may  show  in  de-  judgment  in  ejectment  is  recovered  against 

fence  an  eviction  from  part  of  the  mort-  them  ;  on  a  Itill  in  equity  by  the  vendor 

gaged    premises    by   a  paramount   title,  for  foreclosure  of  a  mortgage  given  for  a 

Steinhauer  v.  Witman,  1    S.  &   II.  447.  part  of  the  purchase-money,  the  purchas- 

See  Hilllard  on  Mortgages,  eh.  20.  ers,  or  those  claiming  under  them,  may 


500 


LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXI. 


avail  themselves  of  the  failure  of  title  as  a 
defence,  and  the  Court  will  either  stay 
the  proceedings,  until  the  damages  are 
ascertained  by  a  suit  at  law,  or  will  direct 
an  issue,  or  a  reference  to  a  Master,  to 
ascertain  the  damages,  before  decreeing  a 
recovery  upon  the  mortgage.  As  a  gen- 
eral,rule,  it  will  be  referred  to  a  Master  to 
ascertain  the  damages,  unless  the  com- 
plainant requires  a  trial  at  law.  Coster  v. 
Monroe,  &c.  1  Green,  Ch.  467. 

A.  sold  to  B.  a  plantation  of  six  hun- 
dred and  thirty  acres  of  land,  with  cove- 
nants of  warranty,  together  with  certain 
personal  property,  and  the  growing  crop, 
for  a  gross  amount,  for  which  B.  gave  his 
notes  payable  in  instalments.  A.  repre- 
sented his  title  to  be  good,  knowing  it  to 
be  defective.  There  was  an  outstanding 
title  to  five  hundred  and  seventy  acres  of 
the  land,  the  owners  of  which  obtained 
possession  after  the  purchase.  Held,  equity 
would  grant  relief,  and  decree  a  rescission 
of  the  contract,  after  judgment  on  the  notes 
given  for  the  purchase-money.  Parham 
V.  Randolph,  4  How.  (Miss.)  435. 

But  an  assignee  of  a  covenant  contained 
in  a  warranty  deed  is  not  affected  by  any 
equities  existing  between  the  original  par- 
ties. Thus,  where  premises  were  conveyed 
subject  to  a  mortgage,  and  it  was  agreed, 
at  the  time  of  the  conveyance,  that  the 
grantee  should  assume  payment  of  the 
mortgage,  and  pay  to  the  grantor  only 
the  difference  between  the  amount  thereof 
and  the  consideration  of  tlie  conveyance, 
and  that  the  covenants  of  warranty  and 
for  quiet  enjoyment  should  not  extend  to 
the  mortgage  ;  held,  such  agreement  could 
not  be  set  up  in  bar  to  an  action  brought 
by  the  assignee  of  the  covenantee,  who 
was  evicted  under  the  mortgage.  Suydam 
V.  Jones,  10  Wend.  180,  184. 

So  a  defence  to  a  bill  for  foreclosure 
was  denied,  because  the  party  merely 
alleged  an  outstanding  title.  Van  Wag- 
goner V.  M'Ewen,  1  Green,  Ch.  412. 

Conveyance  to  the  president  of  an  in- 
corporated company  and  his  successors  in 
trust  for  the  stockholders.  The  president, 
under  a  power  from  the  stockholders, 
conveyed  and  delivered  possession  to  the 
defendant,  having  notice  of  his  title,  and 
took  notes  for  the  price,  secured  by  mort- 
gage of  the  property.  In  a  bill  to  fore- 
close, brought  by  an  assignee  of  one  of 
the  notes,  the  mortgagor  sought  to  defend, 
upon  the  ground  that  the  deed  to  the 
president  was  void,  but  did  not  allege  any 
fraud  or  mistake.  There  had  been  no 
eviction.  Held,  no  defence  to  the  suit. 
Natchez  v.  Minor,  9  Sm.  &  M.  544. 

Conveyance  with  warranty,  and  a  bond 
and  mortgage  back  to  secure  the  price. 
The  mortgagor  brings  a  bill  in  equity  for 
an  injunction  of  a  suit  at  law,  upon  the 


ground  of  a  failure  of  consideration  of 
these  securities,  consisting  in  a  want 
of  title  in  the  mortgagee.  It  appeared, 
that  the  plaintiff  had  taken  possession  and 
never  been  evicted ;  that  tlie  securities 
had  been  assigned,  for  value  ;  and  that  the 
lilaintiff,  in  consideration  of  forbearance, 
gave  the  assignee  a  new  bond  and  mort- 
gage, the  latter  having  no  notice  of  any 
fraud  or  failure  of  consideration  in  the 
original  transaction.  Held,  the  bill  could 
not  be  maintained.  Bumpus  v.  Platner, 
1  Johns.  Ch.  213. 

Where,  in  a  sale  of  land,  although  with 
covenants  of  warranty,  there  has  been 
fraud  on  the  part  of  tlie  vendor,  consisting 
eitherof  misrepresentation  or  concealment, 
the  vendee  may  go  into  equity  for  relief. 
So,  though  the  outstanding  title  was  on 
record.  So,  it  seems,  though  there  has 
been  no  eviction.  But,  if  the  contract  is 
entire,  and  there  is  a  failure  of  title  as  to 
a  part  of.the  land,  which  is  essential  to  the 
perfect  enjoyment  of  the  remainder,  in 
the  manner  contemplated  by  the  purclias- 
er.  Chancery  will  rescind  the  contract.  It 
seems,  this  is  the  proper  remedy.  Parham 
V.  Randolph,  4  How.  (Miss.)  435. 

In  connection  with  the  subjects  of  this 
chapter,  the  following  cases  illustrate  in 
several  particulars  the  power  and  action 
of  n  Court  oj'  Equity  :  — 

A.  made  an  agreement  for  the  sale  of 
lands  with  B.  and  C,  took  tlie  notes  of 
the  latter,  with  U.  and  E.  as  sureties,  and 
gave  his  bond,  conditioned  to  make  titles, 
when  the  notes  were  paid.  B.  and  C.  as- 
signed the  bond  to  D.  and  E.,  to  indemnify 
them  for  becoming  sureties.  A.  dying, 
and  D.  and  E.  being  in  possession  of  the 
lands,  and  D.  exercising  a  control  over 
them,  D.  paid  the  last  note  due,  after  suit, 
and  took  from  A.'s  representatives  and 
heirs  a  bond,  conditioned  for  the  execut- 
ing of  a  title  to  D.  within  a  specified  time. 
On  the  expiration  of  this  time,  D.  brought 
his  action  upon  the  bond,  and  the  present 
bill  was  filed  by  A.'s  representatives  for 
specific  performance.  Held,  the  adminis- 
trator was  entitled  to  a  specific  execution 
of  the  contract  of  his  intestate,  and  the 
heirs  might  well  become  parties  to  the 
suit ;  that  the  bond  executed  by  the  plain- 
tiffs was  witliout  consideration  and  void  ; 
that  the  plaintiffs,  in  bringing  this  suit, 
had  a  right  to  make  the  bond  a  part  of  the 
case,  and,  in  decreeing  a  specific  execu- 
tion, chancery  could  decree  also  a  cancel- 
lation of  the  bond  ;  that  it  was  a  just 
excuse  for  delay  to  file  this  bill,  that  the 
party  holding  the  bond  of  the  intestate 
might  have  applied  to  the  Orphans'  Court, 
and  there  perfected  a  title ;  that  the  as- 
signment of  the  bond  to  the  sureties  cre- 
ated an  equitable  mortgage  of  the  lands  in 
favor  of  the  latter,  which  might  be  fore- 


CHAP.   XXXI.]        NOTES,   ETC.,   FOR   PURCHASE-MONEY. 


501 


closed ;  and  that  it  was  essential  to  make 
all  the  heirs  of  the  vendor,  and  of  the 
assignee  of  the  vendees,  parties  to  the 
cause,  before  a  decree  could  be  rendered ; 
but  that  all  the  amendments  for  this  pur- 
pose could  be  made  on  remanding  tlie  case 
to  the  Court  below,  on  a  mandate  from  tiie 
higher  Court.  Hays  v.  Hall,  4  Port.  Eq. 
374. 

A  purchaser  with  notice  of  an  adver- 
sary claim  to  part  of  the  land,  not  asking 
rescission,  sliall  not  have  compensation 
for  the  part  lost.  Morrison  v.  Caldwell,  5 
Monr.  4o9. 

So,  where  a  purchaser  with  warranty 
had  full  notice  of  the  adverse  claims  to 
the  property,  he  cannot  have  rescission, 
because  the  warrantor  becomes  insolvent, 
and  he  fears  a  loss  of  the  land.  Where  a 
part  of  the  land  is  lost,  and  the  warrantor 
insolvent,  the  purchaser  may  have  com- 
pensation, by  injunction  against  a  judg- 
ment for  the  balance  of  the  purchase- 
money.  But,  if  he  had  notice  of  the 
adverse  claim  before  his  jjurchase,  he 
cannot  have  an  injunction,  and  the  cause 
delayed,  till  the  adverse  claim  be  tried  in 
another  court.  A  purchaser  may  have  an 
injunction  against  a  judgment  for  a  bal- 
ance of  the  purchase-money,  for  the  dam- 
ages caused  by  breach  of  warrant}',  the 
warrantor  being  insolvent ;  although  re- 
covered by  a  bond-Jide  assignee  of  the 
obligation,  without  notice.  Kawlins  v. 
Timberlake,  6  Monr.  230. 

Upon  the  ground  that  a  Court  of  Equi- 
ty, in  Massachusetts,  has  no  power  to 
decree  specific  i^erformance  of  a  contract, 
unless  every  part  of  it  has  been  reduced 
to  writing:  where  the  defendant  contracted 
in  writing  to  execute  and  deliver  a  deed 
of  land,  upon  paj'ment  of  certain  notes 
given  for  the  purchase-money,  and  made 
a  subsequent  verbal  promise,  to  deliver 
the  deed  upon  payment  of  the  notes  before 
they  should  fall  due ;  it  was  held,  that  a 
bill  in  equity  against  him  for  specific  per- 
formance of  the  contract,  as  modified  by 
the  verbal  agreement,  could  not  be  sus- 
tained. Brooks  V.  Wheelock,  11  Pick. 
439,  440. 

The  following  cases  further  illustrate 
the  riglits  and  duties  of  the  respective 
parties,  in  connection  with  notes  given 
for  the  purchase-money  of  land  sold,  and 
the  payment  of  such  notes  :  — 


For  the  first  payment  under  a  contract 
for  the  purchase  and  sale  of  land,  the 
vendee  drew  a  bill  of  exchange,  payable 
at  the  time  when  a  conveyance  of  the 
land  was  agreed  to  l)e  made,  which  was 
dishonored  at  maturity,  and  the  vendee 
was  then  insolvent.  Ilelil,  that  the  ven- 
dor might  rescind  the  contract,  and  refuse 
to  convey  ;  and,  having  done  so,  his  ad- 
ministrator could  not  revive  it.  Todd  v. 
Caldwell,  10  Tex.  28(j. 

A.  agreed  with  B.,  that,  in  considera- 
tion of  a  certiiin  sum,  he  would  convey  to 
B.  a  certain  tract  of  land,  and  the  pur- 
chase-money was  secured  by  notes,  payii- 
ble  in  three  years.  It  was  furtiier  agreed, 
that  B.  should  take  possession,  and  pay 
annually,  for  three  years,  a  certain  portion 
of  the  crop  ;  if  B.  thus  paid  for  tlie  land 
in  three  years,  the  deed  was  to  be  given  ; 
if  not,  the  annual  payment  was  to  be  con- 
sidered as  rent,  and,  at  the  end  of  the 
three  years,  the  land  to  be  surrendered  by 
B.  Held,  if  the  annual  payments  amount- 
ed at  the  expiration  of  four  years  to  the 
price  agreed,  the  bargainee  claiming  that 
they  should  be  so  applied,  although  the 
bargainor  insisted  that  they  should  be 
considered  only  as  rent,  the  bargainee  was 
entitled  to  a  conveyance.  Wells  v.  Wells, 
3  Ired.  Ch.  59G. 

Upon  the  general  subject  of  the  rights 
and  duties  of  the  parties  in  reference  to 
title,  it  may  be  here  added,  that,  while  the 
vendee  may  set  up  the  vendor's  want  of 
title,  in  defence  against  a  claim  for  specific 
performance  or  for  the  purchase-money  ; 
it  has  been  held,  that  a  vendor  cannot  ex- 
empt himself  from  his  obligation  and 
agreement  to  convey,  on  the  ground  tliat 
he  has  not  the  legal  title.  It  is  said,  a 
vendor  has  no  interest  in  setting  up  his 
own  want  of  title.  Jones  v.  Belt,  2  Gill, 
106. 

It  has  been  held,  that  a  hona-fide  ven- 
dor, believing  he  has  title,  covenanting  to 
convey,  and  discovering,  before  any  i)art 
of  the  consideration  is  paid,  a  defect  in  his 
title,  is  not  liable  to  damages  for  refusing 
to  convey.  Otherwise,  if  he  acts  mald^fide, 
and  refuses  to  convey  because  the  prop- 
erty has  increased  in  value.  Baldwin  v. 
Munn,  2  Wend.  399 ;  Bitner  v.  Brough, 
11  Penn.  127. 


502  LAW   OF  VENDORS  AND   PURCHASERS.      [CHAP.   XXXII. 


CHAPTER    XXXII. 

WAIVER   OF   MUTUAL   AND    CONDITIONAL   RIGHTS    OF   VENDOR   AND 

VENDEE. 

1.  Although  the  respective  obligations  in  a  contract  of  sale  and 
purchase  may  themselves  be  dependent  and  conditional ;  yet,  as  we 
have  in  various  connections  incidentally  remarked,  the  parties  by 
their  conduct  may  waive  the  conditions  provided  for  their  protec- 
tion and  benefit.  Thus  an  outstanding  mortgage  upon  lands  con- 
veyed, possession  having  been  taken  by  the  grantee,  is  held  no  bar 
to  an  action  for  the  price,  unless  fraud  be  shown. ^  So  money 
paid  under  an  agreement  for  a  lease  cannot  be  recovered  back,  on 
the  ground  that  the  lease  tendered  contained  covenants  on  the  part 
of  the  lessee  to  cleanse  the  drains  and  vaults,  and  not  to  assign  or 
underlet,  or  make  alterations  without  consent  of  the  lessor  ;  if  the 
lessor  at  the  time  of  tender  requested  the  lessee  to  specify  his 
objections  to  the  lease,  but  he  refused  to  do  so.^  So,  if  before  the 
period  fixed  for  delivery  of  a  deed  the  vendee  has  declared  that  he 
would  not  receive  it,  and  that  he  intended  to  abandon  the  contract, 
it  may  render  a  tender  of  the  deed  before  the  institution  of  a  suit 
unnecessary.     Otherwise,  with  a  subsequent  declaration.^ 

2.  So  a  substantial  performance  by  the  vendor  in  making  a  good 
title  will  be  sufficient  to  bind  the  vendee,  (a) 

3.  Sale  of  land,  and  a  house  to  be  erected  thereon.  Declaration, 
that  on  a  certain  day  the  house  was  finished,  and  the  plaintiff  ten- 
dered the  key  to  the  defendant,  and  offered  to  deliver  to  him  a  good 
and  sufficient  deed  with  warranty,  duly  acknowledged,  conveying 
the  fee  free  of  incumbrances,  and  to  make  a  good  and  sufficient 
title ;  and  was  ready,  able,  and  desirous  to  do  so,  but  that  the  defend- 
ant refused  to  accept  such  conveyance  and  title.  Plea,  that  the 
plaintiff  had  not  a  clear  title,  but  that,  having  mortgaged  the  house 

1  Oldfield  V.  Stevenson,  1   Cart.  153.  2  Sargent  v.  Adams,  3  Gray,  72. 

See  p.  503.  3  Bank,  &c.  v.  Hagner,  7  Pet.  455. 

(a)  See  pp.  27,  270. 


CHAP.   XXXII.]  WAIVER.  503 

to  A.,  he  had  conveyed  the  equity  of  redemption  to  B.  Replication, 
that  B.,  by  a  bond  of  even  date  with  the  deed  to  him,  had  cove- 
nanted to  reconvey  to  the  plaintiff,  and  that  he  was  willing  and 
offered  to  do  so  whenever  the  defendant  would  accept  the  plaintiffs 
deed.     Held,  that  the  declaration  and  replication  were  sufficient.^ 

4.  A  party  has  no  remedy  in  equity  on  the  mere  ground  of  a  fail- 
ure of  title,  if  he  has  taken  no  covenants  to  secure  the  title,  and 
there  is  no  fraud.  Thus  the  defendants,  G.  and  W.,  the  one  by 
the  purchase  of  a  mortgage,  and  the  other  by  the  purchase  of  the 
equity  of  redemption,  became  possessed  of  the  whole  estate,  and 
leased  it  to  the  plaintiff.  G.  afterwards  assigned  the  mortgage, 
with  notice  of  the  terra.  Held,  the  assignment  was  not  a  fraud  on 
the  plaintiff;  and,  though  the  property  was  afterwards  sold,  on  a 
bill  for  foreclosure  filed  by  the  assignee,  and  the  term  thereby 
merged  in  the  inheritance  ;  yet,  as  the  plaintiff  himself  became  the 
purchaser,  he  thereby  waived  all  right,  if  any  he  had,  to  relief  for 
the  damages  sustained  by  the  loss  of  his  term  ;  that  the  fraud,  in 
such  cases,  which  will  entitle  a  party  to  relief,  is  a  fraud  at  the 
time  of  the  execution  of  the  deed  or  lease  to  the  plaintiff,  and  not 
fraud  in  a  subsequent  and  distinct  transaction  ;  and  that  the  pos- 
session of  a  tenant  is  notice  to  a  purchaser  of  the  reversion  of  the 
actual .  interest  of  the  tenant,  and  of  the  extent  of  that  interest ; 
and  the  purchaser  is  bound  to  admit  every  claim  of  the  tenant, 
which  he  could  enforce  against  the  vendor.^ 

5.  But  the  rights  of  a  party  will  not  be  held  to  have  been  waived, 
unless  the  circumstances  strictly  require  such  construction  of  his 
acts.  Thus  an  offer  by  a  purchaser,  after  examining  a  title  which 
proves  defective,  to  take  the  land  if  he  may  pay  in  notes  of  other 
parties,  not  accepted  by  the  vendor ;  constitutes  no  waiver  of  his 
right  to  refuse  a  deed,^  So,  whether  the  purchaser  has  been  in  the 
occupation  of  the  premises  at  all,  or  whether  he  was  in  possession 
up  to  the  trial,  is  held  immaterial,  and  cannot  affect  his  right 
to  sustain  an  action,  upon  breach  of  the  contract ;  and  such 
a  breach  occurs  when  the  vendor,  upon  request,  refuses  to  convey.* 
So  a  vendee  is  not  bound  to  restore  possession  and  give  up  the 
contract,  before  he  can  object  to  the  title,  in  an  action  for  the  pur- 
chase-money.    He  cannot  keep  both  the  estate  and  the  price  ;  but 

1  Rowland  v.  Leach,   11   Pick.   154  ;  3  Mead  v.  Fox,  6  Cush.  199. 

Fleming  v.  Gilbert,  3  Johns.  530.  *  Fletcher  v.  Button,  6  Barb.  G46. 

'^  Chesterman  v.  Gardner,  5  Johns.  Ch.  29.     See  p.  502. 


504  LAW   OF   VENDORS   AND    PURCHASERS.       [CHAP.    XXXII. 

it  is  the  vendor's  business,  if  he  finds  that  he  cannot  make  sucli  a 
title  as  the  vendee  is  bound  to  accept,  to  refund  wliat  has  been 
paid,  and  bring  an  ejectment  for  the  property. ^  So,  althougli  the 
taking  possession  of  property  by  the  vendee,  before  conveyance,  is 
a  circumstance  from  which  it  is  to  be  inferred  that  he  considered 
the  contract  closed ;  it  would  not  deprive  him  of  the  right  to  relin- 
quish the  property,  if  the  vendor  could  not  or  did  not  make  a  title, 
and  then  to  recover  back  the  purchase-money.^  So  a  bill  by  a  ven- 
dor for  specific  performance,  the  report  being  against  the  title,  was 
dismissed  with  costs,  upon  the  circumstances  ;  the  purchaser  hav- 
ing taken  possession  at  the  instance  of  the  vendor,  representing 
the  title  to  be  perfect.^  So  a  vendor  covenanted  to  convey  the 
land,  which  was  to  be  surveyed,  free  of  incumbrances,  by  the  1st 
of  January.  The  land  not  being  surveyed  in  time,  the  vendee 
verbally  declared  that  he  would  take  no  advantage,  on  account  of 
the  vendor's  not  conveying  on  the  day.  The  land  was  some  months 
afterwards  surveyed,  but  the  vendee  refused  to  accept  a  convey- 
ance, because  it  was  incumbered.  Held,  the  vendee,  by  enlarging 
the  time,  did  not  waive  his  right  to  recover  a  sum  which  was  fixed 
and  liquidated  by  the  agreement,  as  the  amount  of  damages  to  be 
paid  by  the  party  failing  in  performance,  even  admitting  that  his 
consent  to  extend  the  time  amounted  to  an  agreement;  for  such 
subsequent  agreement,  by  parol,  was  void  by  the  Statute  of  Frauds, 
and  could  not  alter,  revoke,  or  modify  the  previous  valid  contract.^ 
So  upon  a  written  agreement  for  the  conveyance  of  real  estate,  on 
payment  of  a  certain  sum,  and  the  execution  of  a  mortgage  upon 
the  property  for  the  balance,  a  specific  performance  will  be  decreed 
upon  tender  of  the  money  and  the  mortgage,  notwithstanding  a 
subsequent  unwritten  agreement,  founded  upon  no  consideration, 
that  a  conveyance  should  be  made  of  a  less  quantity.^ 

6.  And  the  same  strict  rule  is  applied  in  favor  of  the  vendor. 
Thus  a  vendor  covenanted  to  convey  within  two  years,  and  the 
vendees  to  pay  on  receiving  the  conveyance.  The  latter  took  im- 
mediate possession,  pursuant  to  another  covenant  on  the  part  of 
the  vendor;  and,  by  an  arrangement  between  the  parties  and  one 
A.,  part  of  the  premises  were  conveyed  to  the  vendees  by  A.,  within 
the  two  years,  A.  having  title  ;  but  the  time  had  elapsed  when  the 

1  Gans  V.  Kenshaw,  2  Barr,  84.  *  Hasbrouck    v.    Tappen,    15    Johns. 

2  Bank,  &c.  v.  Hagner,  1  Pet.  455.  200. 

3  Vancouver  v.  Bliss,  11  Ves.  458.  ^  Merkle  v.  Wehrlieim,  32  111.  534. 


CHAP.    XXXII.] 


WAIVER. 


505 


conveyance  for  the  residue  was  tendered  ;  and  for  that  reason  tlie 
vendees  refused  to  receive  the  conveyance.  Held,  the  contract 
was  not  rescinded,  and  the  vendees  were  liable  in  indehitatus 
assumpsit  for  the  consideration-money,  not  having  redelivered 
possession,  and  rescinded  in  toto} 

7.  Where,  in  case  of  a  contract  to  sell  and  buy  land  for  a  speci- 
fied sum,  the  title  to  a  part  failed,  from  a  cause  of  which  both 
parties  were  ignorant ;  held,  a  sufficient  reason  for  rescinding  the 
whole  contract,  but  that  the  vendee  could  not  insist  that  it  should 
be  partially  rescinded;  and,  if  he  declined  to  rescind,  he  must  pay 
the  whole  price.^(a) 


1  Gale  V.  Nixon,  6  Cow.  445. 


(a)  As  to  waiver  in  case  of  a  bill 
for  specific  performance,  see  Younger  v. 
Welch,  2-J  Tex.  417.  By  payment,  Col- 
lins V.  Vandever,  1  Clarke,  573.  In  case 
of  improvements  upon  the  land,  Farley  v. 
Vaughn,  11  Cal.  227  ;  Murphy  v.  Lock- 
wood,  21  111.  611 ;  Ingersoll  v.  Ilorton,  7 
Mich.  405  ;  Armstrong  v.  Pierson,  5 
Clarke,  317 ;  Frank  v.  Purrington,  ib. 
345. 

A  suit  for  the  price  is  a  waiver  of  a 
previous  notice  of  rescission  for  non-pay- 
ment, and  an  affirmance  of  the  contract, 
upon  which  specific  performance  may  be 
decreed.    Minert  v.  Emerick,  G  Wis.  355. 

Where,  under  a  sale,  tlie  defendant 
went  into  possession,  but  the  parties  dis- 
agreed as  to  price,  and  the  negotiation 
was  broken  ofl",  and  the  possession  aban- 
doned ;  a  bill  for  specific  performance  was 
held  to  have  been  properly  dismissed. 
Hubbard  v.  Gray,  21  Ark.  501. 

If  the  vendor  has  no  title,  the  vendee 
may  recover  back  what  he  has  paid,  with- 
out demanding  a  good  conveyance.  Falk- 
ner  v.  Guild,  10  Wis.  503. 

The  refusal  of  a  purchaser,  to  take  a 
deed  of  such  part  of  the  land  as  the  ven- 
dor can  convey,  enables  the  vendor  to 
convey  the  land  to  another,  the  purchas- 
er's only  remedy  being  for  damages. 
Dorn  V.  Dunham,  24  Tex.  366. 

So  though  the  vendee  was  in  possession 
of  all  the  land  which  he  supposed  he  had 
bought ;  and,  after  notice  of  the  subse- 
quent conveyance,  obtained  possession  of 
the  deed.     Ibid. 

As  his  want  of  title  depends  upon  the 
fact  that  he  never  acquired  the  title,  not 
upon  any  abandonment  of  the  contract ; 
he  may  be  supposed  still  to  claim  Jamages 
for  its  breach.     Ibid. 

To  a  declaration  on  a  note  for  the  price 


2  Bailcyy.  James,  11  Gratt.  468.  See 
Shirley  v.  Shirley,  7  Blackf.  452. 

of  land  of  which  the  defendant  retains 
possession  ;  it  is  not  a  good  plea,  that  the 
fences  were  rotten  and  not  as  represented  ; 
the  fences  being  part  of  the  freehold. 
Kinney  v.  Osborne,  14  Cal.  112. 

Where  land  passed  by  a  contract  in 
writing  through  successive  owners  to  B. 
and  A.,  partners  in  purchasing  and  selling 
lands,  and  was  by  them  sold  by  a  written 
contract  to  C,  who  again  sold  to  several 
purchasers  ;  in  an  action  by  B.  and  A.,  to 
enforce  specific  performance  of  C.'s  con- 
tract, held,  the  defendants  might  show,  by 
the  agent  of  the  original  owner,  that  by 
the  consent  of  B.  and  C,  he,  as  agent, 
made  deeds  to  the  vendees  of  C.  Bonner 
V.  Campbell,  48  Penn.  286. 

When  the  two  parties  to  a  contract  are 
required  by  it  to  do  concurrent  acts,  those 
on  one  side  being  the  consideration  for 
those  on  the  other,  it  is  not  necessary  that 
one,  in  order  to  secure  a  riglit  of  action 
against  the  other,  should  niake  a  formal 
and  express  tender,  if  he  show  that  he 
made  no  default  himself,  that  he  was  ready 
and  willing  to  perform,  and  that  this  was 
well  understood  by  the  other,  who,  not- 
withstanding, refused  to  perform  on  his 
side.     Cobb  r.  Hall,  33  Vt.  233. 

Therefore,  if  one  part}'  is  entitled  to  a 
deed  of  land  from  the  other  on  payment 
of  a  certain  sum,  and  makes  a  definite 
and  bond-Jide  offer  of  performance,  but  the 
latter  absolutely  refuses  to  accept  and 
perform  on  his  part;  this  will  dispense 
with  an  actual  production  and  tender  of 
the  money.  And  a  mere  offer  to  jicrforni 
by  the  latter,  after  suit  brought  against 
him  by  the  former,  to  recover  hack  money 
paid  under  the  contract  on  account  of  the 
latter's  prior  refusal  to  perform,  will  not 
put  the  latter  in  any  better  position.    Ibid. 

T.  and  K.,  in  February,  1854,  entered 


506 


LAW    OF   VENDORS   AND    PURCHASERS.      [CHAP.    XXXII. 


into  a  written  agreement  for  the  exchange 
of  lands,  the  land  of  T.  to  be  subject  to  a 
mortgage  of  $12,000,  possession  to  be  de- 
livered whenever  requested,  and  deeds  to 
be  delivered  on  or  before  the  1st  day  of 
May  following.  Possession  was  immedi- 
ately after  mutually  delivered,  and  in  April 
T.  delivered  to  K.  a  deed  of  his  land  sub- 
ject to  the  mortgage  and  containing  the 
following  clause  :  "  which  said  mortgage 
the  said  K.  hereby  assumes  and  agrees  to 
pay."  The  deed  remained  in  the  hands 
of  K.  and  his  counsel  until  the  November 
following,  without  any  suggestion  to  T.  of 


any  objection  on  his  part  to  the  terms  of 
the  deed.  On  the  7tli  of  November,  K. 
returned  the  deed  to  T.,  stating  that  he 
refused  to  accept  it  and  should  not  perform 
the  contract  on  his  part.  K.  had  until  then 
retained  possession  of  the  property  deliv- 
ered to  him  by  T.,  had  offered  it  for  sale 
and  rent,  and  did  not  afterwards  offer  to 
redeliver  it.  On  a  bill  in  equity,  brought 
by  T.  to  compel  K.  to  convey  the  land, 
held,  K.  by  his  retention  of  the  deed  had 
accepted  it.  Townsend  v.  Ward,  27  Conn. 
610. 


CHAP.    XXXIII.]  USE   AND    OCCUPATION.  507 


CHAPTER    XXXIII. 


ACTION  FOR  USE  AND  OCCUPATION,  BETWEEN  VENDOR  AND  VENDEE. 

1.  "Where  the  contract  of  sale  and  purchase  fails  to  be  com- 
pleted, the  question  has  often  arisen,  whether  the  vendee,  having 
taken  possession,  is  to  be  so  far  considered  the  tenant  of  the  ven- 
dor, as  to  be  liable  in  an  action  for  use  and  occupation.  Upon  this 
point  it  has  been  sometimes  held,  that,  when  the  vendee  has  thus 
entered,  and  fails  to  pay  the  purchase-money  as  agreed,  the  vendor 
may,  at  his  election,  either  treat  him  as  a  tenant,  and  recover  for 
use  and  occupation,  or  as  a  trespasser,  and  eject  him  by  suit ;  and 
in  neither  case  is  the  vendee  entitled  to  notice  of  his  vendor's 
election,  other  than  that  given  by  the  commencement  of  legal  pro- 
ceedings.^ So  if,  after  the  contract  is  clearly  abandoned,  the 
purchaser  retain  possession,  he  will  be  liable  as  for  use  and 
occupation.^  So,  when  the  vendee  enters  into  possession  under 
a  parol  contract  of  purchase,  by  the  terms  of  which  he  was  to  pay 
"  $500  down,  and  $500  twelve  months  afterwards,"  and  entirely 
fails  to  pay  the  purchase-money,  and,  after  remaining  in  possession 
for  more  than  twelve  months,  abandons  the  land ;  the  vendor,  if 
in  no  fault,  may  recover,  in  assumpsit  for  use  and  occupation,  the 
value  of  the  land  during  the  time  the  vendee  so  held  it.^  So  where 
the  defendant  under  a  verbal  purchase  went  into  possession,  failed  to 
pay  at  the  time  stipulated,  and  afterwards  voluntarily  abandoned 
the  premises ;  though  there  was  no  agreement  to  pay  rent,  held  he 
was  a  tenant  at  will,  and  liable  to  assumpsit  for  use  and  occupa- 
tion.* So  under  a  verbal  contract  of  purchase,  the  vendee  entered 
and  cultivated  the  land  for  two  years,  then  quit,  and  renounced  the 
contract ;  although  the  vendor  at  the  same  time  offered  to  make  a 
deed  of  the  land,  which  the  purchaser  declined  to  accept.     Held, 

1  Seabury  v.  Stewart,  22  Ala.  207.  3  Smith  v.  Wooding,  20  Ala.  324. 

2  Howard  v.  Shaw,  8  M.  &  W.  118.  *  Patterson  i'.  Stoddard,  47  Maine,  855. 


508  LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.  XXXIII. 

the  vendor  might  maintain  an  action  for  use  and  occupation  for 
two  years. (a) 

2.  This  general  rule,  however,  is  controlled  by  some  important 
distinctions  as  to  the  time  for  which  a  purchaser  is  thus  liable. 
Thus  the  defendant  made  a  verbal  purchase  of  the  plaintiff's  house, 
advanced  the  purchase-money,  and  took  possession.  Before  any 
deed  was  given,  the  house  was  burned,  but  immediately  afterwards 
a  deed  was  tendered  and  refused,  and  the  defendant  quit  pos- 
session of  tlie  ground,  and  brought  an  action  for  the  purchase- 
money,  in  which  he  recovered  judgment.  The  plaintiff  tlien  brings 
the  present  action  for  use  and  occupation.  Held,  the  defendant 
was  liable  for  the  time  he  occupied  the  house,  but  not  after  re- 
fusing the  deed.  The  possession  being  taken  under  the  expecta- 
tion of  a  conveyance,  which,  in  consequence  of  an  unforeseen  event, 
never  was  or  could  be  made  ;  the  defendant  in  the  mean  time  was 
a  tenant  at  will.  Had  the  deed  been  actually  made,  the  tenancy 
would  have  been  merged  in  the  executed  contract,  which  by  its 
terms  would  relate  back  to  the  time  of  taking  possession.  But, 
with  regard  to  the  subsequent  period,  by  the  destruction  of  the 
building,  the  purpose  of  the  defendant  to  use  and  occupy  the  estate 
temporarily  till  the  title  should  be  completed,  and  then  perma- 
nently, was  wholly  defeated.  By  his  acts  he  showed  his  deter- 
mination to  terminate  the  tenancy,  and  therefore  no  longer 
remained  liable  as  a  tenant.^ 

3.  S.  &  Co.  agreed  in  writing  with  C,  that,  if  he  would  build 
a  shop  on  land  held  by  him  under  a  five  years'  lease  from  the 
owner  thereof,  and  would  assign  to  them  his  interest  in  certain 
underleases  of  parts  of  the  same  land  made  by  him  for  the  same 
term,  which  leases  had  been  assigned  by  the  lessees  to  S.  &  Co., 
and  if  S.  &  Co.  should  be  permitted  to  occupy  the  land,  without 
paying  rent,  for  three  years,  they  would  then  re-assign  the  under- 
leases to  C.  A  few  months  after  the  making  of  this  agreement, 
and  after  S.  &  Co.  had  entered  upon  the  land,  a  difference  re- 
specting the  land  and  the  buildings  thereon  arose  between  the 
parties,  who  thereupon  agreed  tliat  such  difference  should  be 
referred  to  arbitrators,  and  that  all  papers  pertaining  to  the  land 
should  be  committed  to  them,  and  that  they  should  judge  in  the 

1  Gould  V.  Thompson,  4  Met.  224,  228,  229. 

(a)  Davidson  v.  Ernest,  7  Ala.  817.  In  length  the  English  and  American  cases, 
this    case.    Collier,    C.J.,    examines    at    and  comes  to  the  result  stated  in  the  text. 


CHAP.    XXXIII.]  USE    AND    OCCUPATION.  609 

case,  and  report  what  in  their  judgment  was  just  and  right  to  be 
done  between  the  parties,  and  fix  the  term  of  time  for  which  S.  & 
Co.  should  occupy  the  land  as  full  compensation  for  what  was 
their  rightful  due.  The  arbitrators  awarded,  that  S,  &  Co. 
should  occupy  the  premises,  free  of  rent,  for  two  years  and  six 
months  from  the  time  of  tlieir  entry.  Held,  the  agreement  in 
writing  was  merged  in  the  submission  and  award ;  but  that  S.  & 
Co.,  if  they  occupied  the  premises  after  the  expiration  of  the  time 
named  in  the  award,  were  liable  to  C.  in  assumpsit  for  use  and 
occupation. 1  Shaw,  C.J.,  says,  "  The  effect  of  the  submission 
and  award  was  to  supersede  all  previous  agreements,  leases,  and 
dealings  between  the  parties  respecting  the  estate  in  question.  By 
virtue  of  the  award,  the  defendant  had  the  right  to  occupy  the 
premises  for  the  term  of  two  years  and  six  months  free  of  any 
claim  of  rent  on  the  part  of  Coburn  ;  after  the  expiration  of  this 
period,  the  defendants  had  no  right  to  occupy  the  estate,  as  against 
Coburn  and  his  assignee,  except  as  tenants.  Taking  into  view  the 
previous  relation  of  the  parties,  and  all  the  facts  as  disclosed  by 
the  testimony,  wc  are  of  opinion,  that  the  defendants  did  so  occupy 
the  premises,  after  the  expiration  of  the  two  years  and  six  months, 
and  are  therefore  liable  to  pay  rent  for  the  same  for  the  time  during 
which  they  occupied  them  after  that  term,  until  the  time  when  the 
right  of  Coburn,  under  his  lease  from  the  proprietors  of  the  locks 
and  canals,  to  the  estate  in  question  expired,  and  that  an  action 
for  use  and  occupation  is  the  appropriate  remedy."  ^ 

4.  It  is  said,  that,  when  the  purchase  is  completed,  the  pur- 
chaser's title,  even  at  law,  so  far  relates  back  to  the  time  fixed  for 
completion,  that  he  can  maintain  use  and  occupation  against  a 
person  whom  he  has  by  mistake  allowed  to  have  the  interim 
possession.^ 

5.  The  rule  of  liability  as  tenant  has  been  applied  to  the  vendor 
as  well  as  the  vendee.  Thus  in  an  action  for  use  and  occupation, 
it  appeared  that  the  defendant  sold  land  to  A.,  and  A.  to  the  plain- 
tiff, who  took  possession,  but,  pending  a  suit  for  specific  performance 
by  A.  against  the  defendant,  was  induced  by  the  defendant,  luider 
a  mistake  of  facts,  to  surrender  possession.  A  decree  being 
rendered  in  favor  of  A.,  and  a  conveyance  executed  accordingly ; 

1  Knowles  v.  Shapleiph,  8  Cush.  333. 

2  Knowles  v.  Shapleigh,  8  Cush.  336,  337. 

3  Dart,  120. 


510  LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.  XXXIII. 

held,  the  plaintiff  might  maintain  this  action  for  the  time  during 
which  the  defendant  had  resumed  possession.^  Mr.  Baron  Graham 
says,  "  It  is  not  necessary  in  this  species  of  action  that  the  proper 
relation  of  landlord  and  tenant  should  he  distinctly  made  out 
between  the  parties,  because  the  action  is  calculated  in  form  to 
meet  cases  where  the  parties  do  not  bear  those  characters,  if  there 
be  in  point  of  fact  an  ownership  on  one  hand,  and  an  occupation 
on  the  other,  and  it  should  be  liberally  applied  where  it  may  be 
found  to  be  a  party's  only  remedy.  My  difficulty  has  been  to 
reconcile  that  rule  with  the  rule  of  Kirtland  v.  Pounsett,  where 
the  Chief-Justice  has  certainly  expressed  himself  very  strongly 
against  the  implication  of  an  assumpsit,  where  it  was  not  in  the 
contemplation  of  the  parties.  Although  in  raising  an  implied  as- 
sumpsit, however,  we  may  or  may  not  be  doing  what  was  not  in 
the  contemplation  of  the  parties  at  the  moment,  that  should  not 
be  the  only  consideration  with  us  in  determining  whether  this 
species  of  action  can  be  maintained  or  not." 

6.  This,  however,  has  not  been  the  uniform  doctrine  of  the 
decided  cases,  either  English  or  American.  In  late  cases  it  is 
held,  that  assumpsit  for  use  and  occupation,  or  the  process  of 
forcible  detainer,  does  not  lie  against  one  who  has  acquired  posses- 
sion under  a  contract  of  sale  which  he  refuses  to  execute.^  Nor 
against  a  vendor  who  remains  in  possession.^  Thus  where  a  man 
agrees  to  purchase,  on  an  assurance  that  the  vendor  has  a  long 
term,  and,  on  the  faith  of  such  assurance,  at  considerable  expense, 
enters  into  possession,  he  shall  not,  on  refusing  to  complete  his 
purchase,  on  account  of  the  seller's  having  a  shorter  term,  be 
charged  in  an  action  for  use  and  occupation.*  So  in  a  leading  and 
often-cited  case  it  was  determined,  that,  if  a  purchaser  takes  pos- 
session, and  the  sale,  on  account  of  a  defect  in  the  vendor's  title, 
fails  to  be  completed ;  the  vendor  cannot  recover  rent  upon  an 
implied  contract  for  use  and  occupation.^     Mansfield,  C.J.,  says, 

1  Hull  V.  Vaughan,  6  Price,  157.  ^  Greenup  v.  Vernor,  16  111.  26. 

2  McNair  v.  Schwartz,  16  111.  24 ;  Dix-  *  Hearn  v.  Tomlin,  Peake's  Ca.  192. 
on  V.  Haley,  ib.  145.  5  Kirtland  v.  Pounsett,  2  Taunt.  145.1 

1  In  the   case  of  Gould  v.  Thompson,  4  be  sold,  and  of  which  the  vendee  takes  pos- 

Met.  227,  228,  Shaw,  C.J.,  remarks  as  follows  session  under  permission  of  the  vendor.    The 

upon  this  case,  in  connection  with  a  subse-  cause,   however,    was    not    decided    on    that 

quent  one,  by  which  he  considers  it  as  to  some  ground,  but  on  the   ground  that  the  use  of 

extent  overruled :  "  In  Kirtland  v.  Pounsett,  the    purchase-money,   which    had    been    ad- 

2  Taunt.  145,  it  was  argued  by  counsel,  that  vanced,  was  intended  and  must  be  presumed 

there    was   no   demise,   express    or   implied,  to  be  a  compensation  for  the  use  and  enjoy- 

arising  from  such  use  of  premises  agreed  to  ment  of  the  premises.     But  in  the  subsequent 


CHAP.    XXXIII.]  USE   AND    OCCUPATION.  511 

"  If  no  money  had  been  paid,  pcrhai)s  it  might  l)e  a  dilTercnt  ques- 
tion ;  but  if  a  man  pays  part  of  his  money,  and  is  so  unwise  as 
to  tender  ])ossession  without  a  title,  is  it  not  just  that  the  one 
party  should  take  back  his  money,  and  the  other  take  back  his 
house  ?  It  is  impossible  to  make  the  rules  of  law  depend  on  the 
balance  of  loss  or  gain  in  each  transaction.  The  possession  of 
a  house  is  always  beneficial ;  for  it  protects  the  occupier  from  the 
inclemency  of  the  weather.  A  contract  cannot  arise  by  implica- 
tion of  law  under  circumstances  the  occurrence  of  which  neither 
of  the  parties  ever  had  in  their  contemplation."  ^  So  A.  sold  laud 
to  B.,  and  gave  a  bond  to  make  title.  B.  filed  a  bill  in  equity,  to 
compel  a  specific  execution  or  a  rescission  of  the  contract.  The 
contract  was  rescinded.  A.  sued  B.  in  assumpsit  for  use  and 
occupation.  Held,  that  he  could  not  maintain  the  action,  but  that 
he  should  have  set  off  his  claim  for  rents  and  profits  in  the  suit 
in  equity .2  So  in  case  of  an  agreement  for  the  sale  and  purchase 
of  land,  the  defendant,  the  purchaser,  took  possession,  and  after- 
wards refused  to  complete  his  purchase ;  whereupon  the  plaintiff 
brings  this  action  for  use  and  occupation.  In  considering  the 
question  whether  the  action  was  maintainable,  the  Court  (in  New 
York)  said,  that  the  statute  of  that  State  was  substantially  the 
same  as  the  English  act  of  Geo.  II.,  and  applies  only  to  the  case 
of  a  demise,  and  where  there  exists  the  relation  of  landlord  and 
tenant,  founded  on  some  agreement  creating  that  relation.  The 
defendant  entered  under  a  color  of  title,  which  might  have  been 
enforced  in  equity ;  by  refusing  to  perform  his  contract,  he  became 
a  trespasser,  liable  to  be  turned  out  as  such,  and  responsible  in 
that  character  for  the  mesne  profits,  but  not  as  a  tenant.^  So  a 
bond  was  made,  dated  May  30, 1835,  conditioned,  in  consideration  of 
$500  and  three  notes  for  -$500,  to  convey  a  house  and  lot  when  all 
the  conditions  of  the  bond  should  be  fulfilled.  At  the  foot  of  the 
bond  was  a  receipt  for  $500.    In  1841,  the  obligor  signed  a  certifi- 

1  lb.  196,  197.  3  Smith  v.  Stewart,  G  Jolins.  46. 

2  Rogers  v.  Wiggs,  12  B.  Mon.  504. 

case  of  Hull  v.  Vaughan,  6  Price,  157,  where  ment  of  the  premises,  by  permission  of  the 
the  foregoing  case  was  reviewed,  it  was  de-  owner,  or  otlier  person  having  tlie  power  of 
cided,  on  great  consideration,  overruling  the  disposal,  when  such  use  and  occupation  had 
direction  of  the  Judge  at  Nisi  Prius,  that  been  beneficial."  As  to  tiie  distinction  be- 
where  the  relation  of  landlord  subsisted  by  tween  actual  and  constructive  occupation,  see 
any  contract,  express  or  implied  by  law,  the  Towne  v.  D'Hcinrick,  24  Eng.  Law  &  Eq.  235. 
action  of  assumpsit  for  use  and  fKcu[)ation  That  one  may  be  liable  for  use,  &c.,  though 
would  lie;  and  tiiat  such  contract  would  be  not  technically  for 7'e«<,  see  Smith  v.  Eldridge, 
implied  from  the  actual  occupation  and  enjoy-  26  ib  285. 


512  LAW   OF   VENDORS    AND    PURCHASERS.     [CHAP.  XXXIII. 

cate  tliat  he  had  taken  back  the  property  for  the  same  sum  which 
the  obligee  "  agreed  for  and  purchased  of  him,"  and  "  feel  myself 
bound  for  the  same  amount."  The  obligee  took  possession  in 
1835,  and  remained  in  possession  till  1840 ;  the  rent  being  worth 
890  per  annum.  This  action  was  brought  upon  the  agreement  of 
1841,  to  recover  the  f  500.  Held,  the  defendant  was  bound  to  re- 
turn the  amount  paid  him  by  the  plaintiff  under  the  contract  of 
that  year;  that  the  value  of  the  use  and  occupation  was  not  to 
be  deducted ;  and  that  the  contract  of  1841  was  a  repurchase.^ 
So,  in  an  action  for  use  and  occupation,  it  appeared  that  in  May, 
1838,  the  defendant  contracted  verbally  with  the  plaintiff  for  the 
purchase  of  a  farm  for  $1,200  ;  f  200  or  $300  to  be  paid  when  he 
should  take  possession  ;  $500  in  the  following  summer  ;  and  the 
balance  in  two  years.  The  defendant  entered  and  paid  $200,  for 
which  the  plaintiff  gave  a  receipt,  as  in  part-payment.  The  de- 
fendant took  the  crops  for  1838,  but,  failing  to  make  any  further 
payment,  received  notice  to  quit,  and  removed  in  December.  The 
plaintiff  then  brings  this  action,  and  the  defendant  claims  the 
$200  by  way  of  set-off.  Held,  the  set-off  could  not  be  allowed, 
the  defendant  not  having  paid  or  tendered  the  instalment  when  it 
fell  due ;  but,  also,  that  the  plaintiff  could  not  recover  without 
paying  back  the  sum  received  under  the  contract.^  And  in  con- 
formity with  the  cases  last  cited,  it  is  said  to  have  been  recently 
determined,  that  a  purchaser  who  has  been  let  into  possession, 
pending  discussions  as  to  title,  cannot,  if  the  contract  go  off 
through  defects  in  title,  be  sued  for  use  and  occupation,  even 
though  the  occupation  may  have  been  a  beneficial  one.^  So  the 
defendant  paid  the  plaintiff's  intestate  $100  as  the  price  of  land 
sold,  and  the  intestate  gave  the  defendant  a  negotiable  note  for 
the  money,  under  which  was  written  the  following  memorandum, 
signed  by  the  intestate:  "  N.B.  —  This  note  is  to  be  given  up 
when  I  give  him  a  deed  of  the  land  which  I  have  engaged  to  give 
him,"  &c.  The  defendant  occupied  the  land  nine  years  till  the 
intestate's  death,  but  the  latter  made  no  conveyance  of  the  land, 
and  the  defendant  retained  the  note.  The  intestate  dying  insol- 
vent, his  administrators  bring  this  action  against  the  defendant  for 
use  and  occupation  during  the  nine  years.  Held,  the  action  would 
not  lie.    Parker,  C.J.,  says,  "  This  case,  if  it  must  be  determined 

1  Benson  v.  Boteler,  2  Gill,  74.  3  Dart,  119 ;  Winterbottom  v.  Ingham, 

2  Ayer  v.  Hawkes,  11  N.H.  148.  7  Q.B.  611. 


CHAP.   XXXIII.]  USE   AND   OCCUPATION.  513 

for  the  plaintiff,  would  produce  great  injustice.  There  was  cer- 
tainly no  expectation  between  the  intestate  and  the  defendant, 
that  the  defendant  should  pay  rent  for  the  land  which  he  had 
agreed  to  purchase  and  had  paid  for.  Indeed,  we  do  not  see  why 
the  note,  with  the  memorandum,  is  not  a  suflicient  agreement 
whereby  in  equity  to  compel  a  conveyance.  The  interest  of  the 
money  received  by  the  intestate  was  just  equivalent  to  the  sum 
charged  for  rent ;  the  intestate  therefore  received  his  rent  in  his 
lifetime.  It  is  true  he  gave  his  promissory  note  for  the  money  he 
received,  payable  on  demand  and  on  interest,  but  it  is  manifest 
this  was  to  be  a  mere  memorandum  between  the  parties.  On  the 
note  itself  it  appears  that  it  might  be  discharged  at  any  time,  by 
the  delivery  of  the  deed  which  had  been  agreed  for ;  and  tliough 
the  note  is  negotiable  in  form,  its  negotiability  to  the  prejudice  of 
the  intestate  was  destroyed  by  the  written  memorandum  on  it, 
which,  though  signed  by  the  intestate  alone,  was  binding  on  the 
defendant,  he  having  received  it  in  that  form,  and  every  assignee 
would  have  notice  of  the  subsisting  right  to  defeat  the  note."  ^ 

7.  In  Dwight  v.  Cutler,^  the  defendant  made  proposals  to 
an  agent  of  the  plaintiff  for  the  purchase  of  lands,  and  a  parol 
agreement  was  made,  that,  if  the  plaintiff  accepted  the  propo- 
sals, a  deed  should  be  given  as  soon  as  was  convenient ;  where- 
upon the  defendant,  by  permission,  took  possession.  The  plaintiff 
affirmed  the  contract,  executed  and  tendered  a  deed,  which  the 
defendant  refused,  for  want  of  covenants  of  warranty.  The  defend- 
ant having  occupied  nine  months,  and  all  negotiations  between  the 
parties  ceased,  the  agent  notified  him  that  if  he  continued  to  occupy, 
he  must  pay  rent.  He  afterwards  remained  in  possession  fifteen 
months.  Held,  he  was  liable  to  ])ay  rent  for  the  fifteen  months, 
but  not  for  the  previous  nine  months,  the  plaintiff  having  been 
bound  to  give  a  deed  with  covenants,  and  the  failure  to  consum- 
mate the  sale  having  therefore  been  attributable  to  his  fault.  The 
Court  give  the  following  view  of  the  course  of  decisions  upon  this 
subject :  "  On  the  defendant's  first  entry  into  the  possession  of  the 
premises,  he  became  the  tenant  at  will  of  the  plaintiff.^  And  dur- 
ing the  continuance  of  his  possession,  nothing  appears  to  have  been 

1  Little  V.  Pearson,  7  Pick.  301,  303.  Doe  v.  Jackson,  1  B.  &  C.  455 ;  Doe  v. 

2  3  Mich.  566.  Cliamberlaine,  5  ib.  14 ;  Doe  v.  Caperton, 

3  Gould  r.  Thompson,  4  Mete.  224  ;  Ball  9  Carr.  &  Payne,  112;  Ivirk  v.  Taylor's 
V.  Cullimore,  2  Cr.  JI.  &  R.  120  ;'  Right  v.  Heirs,  8  B.  Mon.  262. 

Beard,  13  East,  210 ;  1  Mees.  &  W.  700 ; 

33 


514  LAW    OP    VENDORS    AND    PURCHASERS.     [CHAP.   XXXIII. 

done  by  either  of  the  parties  to  determine  the  tenancy.  His  occu- 
pation having  been  beneficial  to  him,  that  is  a  sufficient  ground  to 
imply  a  promise  to  pay  a  reasonable  sum  by  way  of  compensation 
for  such  occupancy,  unless  there  is  something  in  the  circumstances 
inconsistent  with  the  notion  of  such  a  promise,  or  of  an  obligation 
to  pay.  We  are  all  clearly  of  opinion  that  the  plaintiff  is  entitled 
to  recover  for  the  use  of  the  premises  during  the  fifteen  months 
they  were  occupied  by  the  defendant,  after  all  negotiation  for  the 
purchase  was  at  an  end,  and  he  was  notified  that  if  he  continued 
in  possession  any  longer,  he  must  pay  rent.  To  this  extent,  How- 
ard V.  Shaw  ^  is  directly  in  point  to  sustain  the  present  action. 
There  a  party  who  had  been  let  into  possession  under  a  valid  con- 
tract of  purchase  which  was  afterwards  abandoned,  was  held  liable 
to  an  action  for  use  and  occupation  at  the  suit  of  the  vendor  for 
the  period  during  which  he  continued  in  possession  after  the  aban- 
donment of  the  contract;  Alderson,  B.,  saying,  "  While  the  defend- 
ant was  in  possession  under  the  contract  of  sale,  he  was  a  tenant 
at  will  under  a  distinct  stipulation  that  he  should  be  rent  free ; 
therefore,  for  that  time,  no  action  for  use  and  occupation  can  be 
brought  against  him ;  but  when  that  contract  is  at  an  end,  he  is  a 
tenant  at  will  simply ;  therefore,  from  that  time  he  is  to  pay  for  the 
occupation."  ^  In  the  present  case,  there  never  was  a  valid  con- 
tract of  purchase.  If  the  minds  of  the  parties  can  be  said  ever  to 
have  met,  their  agreement  was  by  parol,  merely,  and  void  under 
the  Statute  of  Frauds,  and  there  had  been  no  such  part-perform- 
ance as  gave  either  of  them  a  right  to  enforce  it  in  equity.  When, 
therefore,  the  defendant  refused  to  accept  the  deed  tendered,  and 
the  plaintiff  to  execute  any  other,  the  parties  stood  in  respect  to 
the  subsequent  occupation,  in  the  same  relation  to  each  other  as 
though  a  valid  agreement  had  been  made  and  afterwards  abandoned. 
As  to  whether  the  defendant  is  liable  for  the  first  nine  months  of 
his  occupancy,  we  have  entertained  more  doubt.  He  was  admitted 
into  possession  by  the  plaintiff's  agent,  on  his  making  a  proposition 
to  purchase,  and  under  tlie  expectation  that  this  proposition  would 
be  accepted  by  the  plaintiff,  when  made  known  to  her,  and  a  con- 
veyance executed  accordingly.  The  circumstances  clearly  repel 
any  presumption  of  a  promise  by  the  defendant  to  pay  for  his  occu- 
pation pending  the  negotiations  for  the  purchase,  in  the  event  of  the 

1  8  M.  &  W.  118.  2  See  also  Osgood  v.  Dewey,  13  T.  R.  240. 


CHAP.    XXXIII.]  USE   AND    OCCUPATION.  515 

plaiiitiflf's  refusal  to  accept  his  proposition,  or  having  accepted  it, 
her  subsequent  failure  to  perform  on  her  part.^  But  it  is  mani- 
festly just  that  the  plaintiff  should  have  com])ensation  for  such 
occupation,  in  the  event  of  a  failure  in  the  consummation  of  the 
sale,  occasioned  by  the  defendant's  refusal  to  perform  on  his  j)art. 
Upon  the  principle  before  stated,  a  promise  to  pay  for  such  occupa- 
tion in  such  event,  may  fairly  be  implied.  If  this  view  is  not  fully 
sustained  by  Hull  v.  Vaughan,^  the  comments  of  Lord  Denman,  in 
Winterbottom  v.  Ingham,*^  show  that  it  is  not  in  conflict  with  the 
English  decisions.  It  is  sustained  by  the  recent  case  of  Smith  v. 
Wooding,*  in  which  a  vendee,  who  had  entered  into  possession 
under  a  parol  contract  of  purchase,  and  after  remaining  in  posses- 
sion for  twelve  months,  refused  to  pay  the  purchase-money  and 
abandoned  the  premises,  was  held  liable  to  the  vendor,  he  not  being 
in  fault,  for  the  use  and  occupation  of  the  land  during  the  time  he 
so  held  it.  And  it  would  seem  also  to  be  sanctioned  by  Gould  v. 
Thompson.^  If  such  promise  could  be  implied  in  such  a  case 
where  the  sole  cause  of  the  failure  to  consummate  the  sale  was  the 
plaintiff's  inability  to  convey,  occasioned  by  inevitable  accident ; 
surely  it  may  be  where  such  failure  is  caused  by  the  defendant's 
own  default  or  refusal  to  accept  a  conveyance  and  perform  on  his 
part.  It  is  believed  that  this  view  is  not  in  conflict  with  Vander- 
hewill  V.  Storrs,*"  and  Smith  v.  Stewart,"  which  may  be  regarded  as 
sustaining  the  doctrine  that  where  there  has  been  a  contract  to 
purchase,  valid  at  law,  as  in  the  former  case,  or  enforceable  in 
equity  on  the  ground  of  part-performance,  as  in  the  latter,  under 
which  the  vendee  has  entered  and  occupied,  the  vendor  cannot 
maintain  assumpsit  for  such  occupation  while  the  contract,  though 
unperformed,  is  yet  unrescinded  and  in  full  force  ;  for,  in  the  pres- 
ent case,  as  we  have  already  said,  there  was  no  such  contract.  If 
this  view  is  correct,  the  plaintiff  is  entitled  to  recover  in  the  present 
action  for  the  first  nine  months  of  the  defendant's  occupancy,  if  it 
appears  that  she  accepted  the  defendant's  proposition  to  purchase, 
and  ofifered  to  perform  on  her  part,  but  not  otherwise.  The  case 
finds  that  the  proposition  was  accepted.  Such  acceptance  created 
an  agreement  between  the  parties  by  which  the  plaintiff  simply 

1  Winterbottom  v.   Ingham,  7  Ail.  &  »  7  Ad.  &  Ell.  Gil. 
Ell.  611 ;  Hough  v.  Birge,  11  Verm.  190;  «  20  Ala.  K.  324. 
Johnson   v.   Beauchamp,   9    Dana,    124 ;  5  4  Mete.  224. 
ICirtland  v.  Pounsett,  2  Taun.  145.  ^  3  Conn.  203. 

2  6  Price,  157.  1  6  J.  R.  46. 


516  LAW   OF   VENDORS   AND   PURCHASERS.     [CHAP.  XXXIII. 

engaged  to  sell,  and  the  defendant  to  purchase,  the  premises,  on  the 
terms  specified,  nothing  being  said  about  the  title  or  covenants," 
The  Court  then  proceed  to  determine  that  the  defendant  was  not 
liable,  because  a  deed  with  covenants  was  not  tendered. 

8.  With  regard  to  the  precise  nature  of  a  party's  occupancy,  in 
connection  with  a  sale  and  purchase  ;  a  contract  of  sale,  giving 
the  vendee  a  right  to  enter  and  occupy  till  default  in  payment  of 
the  price,  without  reservation  of  rent  or  limitation  of  time,  is  held 
to  be  a  license,  and  not  a  lease.  Hence,  upon  breach  of  contract, 
the  vendor  may  enter  without  notice  or  demand  of  possession.^ 
But,  in  another  case,  a  bond  was  made  to  convey  certain  premises 
to  the  plaintiff,  upon  payment  by  him  of  a  note  on  demand,  and 
interest  quarterly,  and  in  the  mean  time  allow  him,  his  heirs  and 
assigns,  the  peaceable  and  quiet  possession  of  the  premises,  until 
said  conveyance  should  be  made.  The  plaintiff  regularly  paid  in- 
terest on  the  note  as  it  fell  due,  and  both  parties  treated  the  pay- 
ment as  rent ;  and  the  principal  had  never  been  demanded  by  the 
obligor,  nor  paid.  In  an  action  of  trespass  for  removing  the  plain- 
tiff from  the  premises,  the  defendants  justified  under  a  deed  from 
the  obligor  subsequent  to  the  bond,  and  a  notice  to  the  plaintiff 
before  the  act  complained  of.  Held,  the  action  was  maintainable. 
Metcalf,  J.,  says  (in  substance),  "  The  legal  effect  of  the  condition 
of  the  bond  was  a  demise  of  the  premises,  so  long  as  he  should 
pay  the  interest  quarterly  and  should  not  fail  to  pay  the  principal 
on  demand.  His  rights  under  the  demise  continued  at  the  time  of 
Brown's  conveyance  of  the  premises  to  the  defendants.  Not  being 
tenant  at  will,  when  that  conveyance  was  made,  his  tenancy  was 
not  thereby  terminated."  ^ 

9.  In  another  case  it  is  held,  that,  where  a  sale  is  rescinded,  the 
vendee  is  not  liable  as  a  lessee,  but  only  for  the  amount  to  ivhich  he 
has  been  benefited  by  occupying  that  part  of  the  land  which  be- 
longed to  the  vendor ;  allowance  being  made  for  improvements, 
including  those  made  on  land  by  mistake  represented  to  have  been 
conveyed  to  him.^  The  Court  say  (p.  440),  "The  weight  of  the 
English  and  American  authority  is,  that  when  one  takes  possession 
under  a  contract  to  convey,  he  does  not  thereby  create  the  relation 
of  landlord  and  tenant  between  the  vendor  and  himself,  and  that 
an  action  for  use  and  occupation  will  not  lie  against  him,  until 

1  Stone  V.  Sprague,  20  Barb.  509.    See         2  White  v.  Livingston,  10  Cush.  259. 
p.  128.  3  Coffman  v.  Huck,  19  Mis.  435. 


CHAP.   XXXIII.]  USE   AND    OCCUPATION.  517 

there  has  been  an  abandonment  of  the  contract.  But  this  principle 
does  not  apply  here.  This  is  a  much  stronger  case.  Here  the 
land  was  actually  conveyed.  The  defendant  can  only  be  held  liable 
to  the  amount  that  he  has  boon  benefited  by  the  occupation,  as  he 
has  not  paid  the  purchase-money,  and  not  for  what  a  single  witness 
may  say  was  the  annual  value  of  the  premises.  By  such  a  process, 
the  plaintiffs,  in  a  short  time,  taking  advantage  of  their  own  refusal 
to  rescind  a  contract,  which  the  judgment  in  this  case  assumes 
ought  to  have  been  rescinded,  would  have  received  the  price  of  the 
land,  and  then  have  taken  the  land  itself." 


518  LAW   OF   VENDORS   AND   PURCHASERS.     [CHAP.   XXXIV. 


CHAPTER  XXXIY. 

MEASURE   OF   DAMAGES    TO    BE   RECOVERED    BY   VENDOR   AND   VENDEE. 

1.  An  important  subject  of  inquiry,  in  connection  with  the  re- 
spective remedies  of  tlie  vendor  and  vendee  of  real  estate,  is  the 
amount  of  damages  to  be  recovered  by  each  for  a  breach  of  the 
contract  by  the  other.^  As  has  been  seen  (ch.  28),  the  most 
effectual  redress  for  the  purchaser,  and  one  specially  favored  by 
the  law  in  reference  to  real  estate,  is  specific  performance  of  the 
contract,  effected  through  a  bill  in  equity.  The  same  remedy  may 
also  be  resorted  to  by  the  vendor  ;  but,  of  course,  differs  less  in 
this  case  than  in  the  other  from  an  action  at  law  for  damages ;  be- 
cause pecuniary  compensation,  or  the  price  or  value  of  the  property 
sold,  is  substantially  the  result  alike  of  both  these  proceedings.  It 
will  be  seen,  that  the  measure  of  damages  which  may  be  recovered 
at  law,  either  by  vendor  or  vendee,  is  by  no  means  well  established. 
The  great  point  of  difference  has  been,  whether  the  standard  should 
be  the  price  agreed  upon,  or  the  actual  injury  sustained  by  the 
plaintiff,  in  consequence  of  the  defendant's  violation  of  his  con- 
tract. The  grounds  of  these  respective  opinions  will  appear,  in 
connection  with  a  citation  of  the  leading  English  and  American 
cases  upon  the  subject. 

2.  With  regard  to  the  claim  of  the  vendor  for  damages,  it  has 
been  held,  that,  where  the  purchaser  has  been  let  into  possession, 
but  does  not  complete  the  purchase,  and  refuses  to  pay  the  pur- 
chase-money, and  no  conveyance  is  executed,  the  vendor  cannot 
recover  from  him  the  whole  amount  of  the  purchase-money,  but 
only  the  damages  actually  sustained  by  this  breach  of  contract.^ 

2  a.  In  case  of  a  sale  at  auction,  the  difference  between  the  price 
at  which  the  land  is  first  bid  off,  and  the  price  at  which  it  sold,  at 
a  subsequent  and  second  sale,  affords  a  good  criterion  of  damages 
as  evidence,  although  not  binding  upon  the  jury.     But  the  second 

1  See  Lawrence  v.  Chase,  54  Maine ;         '  Laird  v.  Pim,  7  Mees.  &  W.  474. 
Law  Reg.  May,  1868,  p.  44L 


CHAP.   XXXIV.]  DAMAGES.  519 

sale  must  have  been  conducted  with  fairness,  and  no  means  resort- 
ed to,  to  impair  the  value  of  the  estate  in  public  estimation.  And, 
where  the  declaration  does  not  aver,  as  part  of  the  contract  of  sale, 
a  condition,  that  the  lands  shall  be  resold  in  case  of  a  failure  on 
the  part  of  the  vendee  to  comply  with  the  terms  of  sale,  but  simply 
alleges  the  difference  between  the  two  sales,  and,  as  a  consequence 
of  a  breach  of  contract,  the  liability  of  the  defendant  to  pay  the 
amount  of  that  difference ;  and  is  framed  on  the  supposition  that 
the  difference  between  the  two  sales  is  recoverable  as  on  a  contract, 
and  not  as  unliquidated  damages :  it  is  bad  on  demurrer.^ 

3.  On  the  other  hand  it  has  been  held,  that,  where  a  party  has 
bound  himself  to  receive  a  deed  of  land,  and  to  pay  therefor  a 
stipulated  sum,  and  the  deed  has  been  tendered  and  refused,  but 
has  been  placed  in  a  position  to  await  his  call ;  the  damages  to  be 
recovered,  in  a  suit  upon  the  obligation,  are  the  contract  price  and 
interest.  Tenney,  J.,  says,  "  When  a  party,  who  has  contracted 
in  writing  for  the  purchase  of  land,  has  done  every  thing  on  his 
part  to  entitle  him  to  a  conveyance,  on  a  refusal  of  the  other  party, 
he  can  demand  successfully  specific  performance.  It  is  certainly 
reasonable,  that  the  same  right  should  be  held  by  the  one,  wlio  is 
to  make  the  conveyance,  and  receive  the  consideration.  In  the 
latter  case,  when  the  deed  has  been  tendered  and  refused,  and  now 
awaits  the  call  of  those  who  covenanted  to  accept  it,  it  is  just  that 
the  latter  should  be  compelled  in  a  suit  at  law,  when  damages 
alone  can  be  awarded,  to  pay  the  price,  which  he  had  contracted  to 
give,  as  the  damages  sustained  by  him  who  had  in  good  faith  ful- 
filled the  contract  on  his  part,  together  with  interest  thereon."  ^ 
So,  in  the  case  of  Alna  v.  Plummer,^  the  defendant  bid  off  a  farm 
at  auction.  A  memorandum  thereof  was  made  by  the  auctioneer, 
and  a  deed  properly  executed  was  tendered  to  the  purchaser,  which 
he  refused  to  receive.  The  damages  awarded  were  the  purchase- 
money  and  interest,  (a) 

1  Adams  v.  M'Millan,  7  Port.  73.  '  4    Greenl.    258  ;    ace.   Robinson    v. 

2  Oatman  v.   Walker,  33   Maine,   67,     Heard,  15  Maine,  2y6. 
73,  74. 

(a)  If  a  grantee  of  land,  who  has  agreed  cumbrances  in  the  deed  ;  the  grantor  may 

witli  his  grantor,  in  part  of  the  considera-  sue  the  grantee  in  assumpsit  immediately 

tion  of  the  conveyance,  to  assume  and  pay  for  the  breach  of  his  agreement  to  i)ay 

the  taxes  which  might  thereafter  be  as-  the  taxes,  and,  on  i)aying  tlie  taxes  before 

gassed   on  the  land  as  of  the  1st  day  of  trial,  may  recover  as  part  of  his  damages 

May  previous,  refuses  to  pay  the  taxes  the  amount  so  paid.    Treble  v.  Baldwin, 

when  assessed,  and  brings  an  action  against  6  Cush.  549. 

his  grantor  on  the  covenant  against  in-  The  question  as  to  the  amount  of  dam- 


520 


LAW   OF  VENDORS   AND   PURCHASERS.      [CHAP.  XXXIY. 


4.  The  question,  however,  as  to  the  measure  and  amount  of 
damages,  has  for  tlie  most  part  arisen  in  actions  brought  by  vendee 
against  vendor.  It  will  be  seen,  that  the  point  has  been  variously 
determined  in  different  cases,  as  affected  by  the  analogy  of  coven- 
ants for  title  in  executed  conveyances, (a)  or  of  contracts  for  the 
sale  of  personal  property  ;(5)  by  the  fair  or  fraudulent  intent  of 


ages  to  be  recovered  has  also  been  raised 
as  between  the  vendor  and  a  party  em- 
ployed by  him  to  effect  a  sale  of  the  estate. 
A.  and  B.,  land  agents,  were  severally 
employed  to  sell  an  estate  for  C.  D. 
called  on  A.  to  inquire  after  another  es- 
tate, and  was  told  that  it  was  not  in  the 
market,  but  that  C.'s  estate  was  to  be 
sold.  D.  took  from  A.  a  particular  of  the 
estate,  and  afterwards  meeting  B.,  the 
other  agent,  negotiated  with  him  the 
tei'ms  of  the  purchase,  which  was  after- 
wards completed.  A.  brought  an  action 
against  C.  for  commission  on  the  sale, 
which  was  proved  to  be,  according  to 
usage,  £2  per  cent,  and  payable  to  the 
agent  who  found  the  purchaser.  Held, 
1st,  that  the  question  for  the  jury  was, 
whether  they  thougiit  that  in  fact  A.  had 
found  the  purchaser ;  and  2dly,  that,  if 
they  thought  he  had,  and  gave  their  ver- 
dict for  him,  they  were  not  bound  to  give 
him  the  full  amount  of  the  commission, 
though  the  fact  of  that  commission  being 
usually  paid  was  some  evidence  to  guide 
them  in  their  decision.  Murray  v.  Cur- 
rie,  7  Carr.  &  P.  584. 

(a)  The  following  is  a  concise  state- 
ment of  the  law  upon  this  subject :  — 
"  The  amount  of  damages  to  be  recovered 
depends  upon  the  covenant  which  is  brok- 
en, and  the  manner  in  which  a  breach 
takes  place.  It  seems  to  be  the  universal 
rule,  subject  to  be  varied  only  by  special 
circumstances,  that,  upon  the  covenants  of 
seisin,  &c.,  the  measure  of  damages  is  the 
consideration  paid,  with  interest.  No  es- 
tate having  ever  passed  to  the  grantee, 
the  value  of  the  land  does  not  come  at  all 
in  question.  As  to  the  amount  of  dam- 
ages upon  the  covenants  of  warranty,  &c., 
the  rule  is  variously  settled  in  different 
States.  In  general,  it  is  the  consideration 
paid,  with  interest.  But  in  Massachu- 
setts, Connecticut,  and  Maine,  and  for- 
merly in  South  Carolina  (though  the  rule 
is  now  changed)  the  value  of  the  land  at 
the  time  of  eviction,  with  interest.  In 
Pennsylvania,  the  price  paid,  with  interest 
from  the  time  of  ceasing  to  receive  the 
profits.  In  Ohio,  the  rule  of  damages  on 
a  covenant  of  warranty,  is  the  actual  loss 
sustained,  to  be  ascertained  under  the  oc- 
cupying claimant  law."     2  Hill,  on  R.  P. 


(3d  ed.)  406,  407  and  n.     See  Blossom 
V.  Knox,  3  Chandl.  295  ;  Rich  v.  Johnson, 

1  Chandl.  19 ;  Griffin  v.  Reynolds,  17  How. 
609. 

{b)  It  is  said,  "  In  all  cases  of  execu- 
tory contracts,  the  compensation  in  case 
of  failure,  when  the  property  sold  has  in 
the  mean  time  increased  in  value,  should 
be  tlie  same  as  in  case  of  an  executed 
contract  with  warranty,  and  an  eviction, 
for  the  real  loss  to  the  purchaser  is  the 
same."     Per  Green,  J.,  Stout  v.  Jackson, 

2  Rand.  132. 

So,  in  a  subsequent  case  in  the  same 
court,  it  was  remarked :  "  In  all  execu- 
tory contracts  for  the  delivery  of  personal 
proi)erty  at  a  future  day,  the  established 
standard  of  damages  is  the  value  of  the 
property  at  the  time  and  place  when  and 
where  it  ought  to  be  delivered.  In  all 
executory  contracts  for  the  conveyance  of 
land  at  a  future  time,  the  established 
measure  of  damages  is  the  purchase- 
money."  Per  Cabell,  J.,  Threlkeld  v. 
Fitzhugh,  2  Leigh,  451. 

It  seems  to  be  well  settled,  that  the 
measure  of  damages,  to  be  recovered  by 
a  purchaser  of  personal  property,  for  a 
failure  to  deliver  the  thing  sold  at  the  time 
appointed,  is  the  difference  between  the 
contract  price  and  the  market  price  at 
that  time,  or  that  for  which  the  vendee 
had  sold  ;  but  the  latter  cannot  recover,  as 
special  damage,  the  loss  of  anticipated 
profits  to  be  made  by  his  vendees.  Peter- 
son V.  Ayre,  24  Eng.  Law  &  Eq.  382 ;  Mc- 
Knight  V.  Dunlop,  1  Seld.  537. 

And  the  same  rule  has  been  apphed  to 
an  exchange.  Thus,  in  a  suit  for  breach 
of  a  contract  to  pay  a  certain  quantity  of 
flour  for  a  certain  quantity  of  wheat,  the 
value  of  the  flour  is  the  measure  of  dam- 
ages.    Lucas  V.  Heaton,  1  Cart.  264. 

The  following  remarks,  in  a  late  case  in 
Massachusetts,  refer  to  the  question  not 
unfrequently  raised,  how  far  the  vendee 
may  be  allowed  to  include  remote  and  con- 
timjent  profits,  as  going  to  make  up  the 
value  of  the  property  sold  :  "  The  rule  has 
not  been  uniform  or  very  clearly  settled  as 
to  the  right  of  a  partj-^  to  claim  a  loss  of 
profits  as  a  part  of  the  damages  for  a 
breach  of  a  special  contract.  But  we  think 
there  is  a  distinction  by  which  all  ques- 


CHAP.   XXXIV.]  DAMAGES.  521 

the  party ;  by  the  possession  of  the  vendee  under  the  contract ; 
and  by  the  considerations  of  public  policy,  which  demand  a  rigid 
fulfilment  of  contracts  on  the  one  hand,  and  that  the  i)arty  injured 
should  be  placed  in  as  favorable  condition  as  if  the  contract  had 
been  fulfilled,  on  the  other. 

5.  The  prevailing  doctrine  upon  this  subject  is,  that,  on  a  cove- 
nant to  convey  real  estate,  as  on  a  covenant  of  seisin  in  a  convey- 
ance, the  measure  of  damages,  in  the  absence  of  fraud,  is  the 
purchase-money  and  interest ;  not  the  present  value  of  the  land.^ 
Thus,  where  the  vendor  has  been  unable  to  perform  in  consequence 
of  a  defect  in  his  title,  the  rule  of  damages  is  the  same,  as  in  an 
action  on  the  covenants  as  to  title  in  a  deed ;  and  the  plaintiff  can 
only  recover  for  such  part  of  the  consideration  as  he  may  have 
paid,  with  interest ;  not  the  expenses  of  taking  possession,  or  of 
commencing  the  cultivation  of  the  land,  though  he  entered  pur- 
suant to  the  terms  of  the  contract.^  Bronson,  C.J.,  remarks, 
that  the  measure  of  damages,  in  an  action  upon  the  covenants  of 
seisin  and  for  quiet  enjoyment,  is  the  consideration  paid,  with 
interest  for  such  time  as  the  vendee  may  be  compelled  to  pay  for 
mesne  profits,  and  the  costs  of  the  suit  by  which  he  was  evicted. 
He  can  recover  nothing  for  increased  value  or  improvements.^ 
And  the  measure  of  damages  is  the  same  in  case  of  a  mere  con- 
tract to  sell,  which  fails  solely  for  want  of  title,  without  fraud. 
In  such  case,  the  vendee  can  recover  nothing  for  the  loss  of  a  good 
bargain.     Nor  for  his  expenses  in  removing  to  the  land,  or  im- 

1  Blackwell  v.  Lawrence  Co.  2  Blackf.  2  Peters  i*.  McKeon,  4  Denio,  546,  550. 
143;  Sheets  v.  Andrews,  1  ib.  274;  Allen  3  Staats  v.  Ten  Eyck,  3  Caines,  111 ; 
V.  Anderson,  2  Bibb,  415;  Dunnica  v.  Pitcher  v.  Livingston,  4  Johns.  1;  Kin- 
Sharp,  7  Mis.  71;  Kelly  v.  Bradford,  3  ney  v.  Watts,  14  Wend.  38;  Kelly  v. 
Bibb,  317  ;  Cox  v.  Strode,  2  Bibb,  275.  Dutcli  Church,  2  Hill,  115. 

tions  of  this  sort  can  be  easily  tested.     If  taken  into  consideration  as  a  part  of  the 

the  profits  are  such  as  would  have  accrued  damages  occasioned  by  the  breach  of  the 

and  grOwn  out  of  the  contract  itself,  as  contract  in  suit."     Per  Bigelow,  J.,  Fox  u, 

the  direct  and  immediate  results  of  its  ful-  Harding,  7  Cush.  522. 
filment,  tlien,  they  would  form  a  just  and  Defendant  covenanted  to  convey  real 

proper  item  of  damages  to  be  recovered  estate  to  plaintiff  upon  payment  of . SI, 700, 

against  the  delinquent  party  upon  a  breach  excepting,  however,  from  the  conveyance 

of  the  agreement.      These  are  part  and  the  wood  and  timber  upon  a  part  of  the 

parcel   of  the   contract  itself,  and   must  land,  and  plaintiff"  covenanted  that  in  part 

have   been  in  the  contemplation  of  the  payment  of  tiie  $1,700  he  would  cut  and 

parties  when  the  agreement  was  entered  carry  this  wood.     In  an  action  upon  the 

into.     But  if  they  are  such  as  would  have  implied  covenant  to  permit  plaintiff'  to  cut 

been  realized  by  the  party  from  other  in-  and  carry  the  wood,  tlie  plaintiff',  if  he  has 

dependent    and    collateral    undertakings,  not  performe<l  the  other  condition  prece- 

although  entered  into  in  consequence  and  dent  to  a  conveyance,  and  shows  no  special 

on  the  faith  of  the  principal  contract,  then  damage,  will  be  entitled  to  nominal  dam- 

they  are  too  uncertain  and  remote  to  be  ages  only.     French  v.  Bent,  43  N.H.  448. 


522  LAW   OF   VENDORS   AND   PURCHASEES.     [CHAP.  XXXIV. 

provements.  More  especially  if  he  has  not  acted  with  sufficient 
caution.  The  learned  judge  proceeds  to  remark,  upon  cases 
apparently  conflicting,  that  in  Hopkins  v.  Grazebrooki(a),  the 
defendant  sold,  having  no  color  of  title.  In  Driggs  v.  Dwight,^ 
he  perversely  refused  to  perform  his  contract,  when  there  was  no 
obstacle  in  the  way.  So  in  Nurse  v.  Barns.^  So  it  has  been  held, 
that,  where  the  covenantee  has  been  put  in  possession  and  never 
evicted,  and  the  breach  consists  in  the  failure  of  the  covenantor  to 
convey,  and  in  his  not  having  the  legal  title  in  himself,  and  no 
fraud  is  proved  or  imputed,  the  covenantee  is  not  entitled  to  more 
damages,  at  the  utmost,  than  the  purchase-money  he  has  actually 
paid,  with  interest  for  the  time  for  which  he  may  be  accountable 
for  the  profits  to  the  true  owner.  Parker,  J.,  says,  "The  ven- 
dee's loss,  in  case  of  failure,  is  the  purchase-money ;  the  profits, 
as  long  as  he  receives  them,  standing  in  lieu  of  interest,  unless  so 
far  as  they  are  recovered.  For  this  loss  he  ought  to  be  com- 
pensated, if  the  land  falls  in  value  ;  and  no  more  than  compensated, 
if  it  rises.  Such  a  rule  offers  no  temptation  to  the  vendor  to 
violate  his  contract;  because,  if  he  has  a  good  title,  the  vendee 
can  claim  specific  performance  in  a  Court  of  Chancery.^  So  it  is 
held,  that  the  measure  of  damages  for  a  failure  to  convey  is  the 
consideration  with  interest,  not  in  all  cases  from  the  date  of  the 
covenant,  but  from  the  time  when  the  money  was  payable  without 
interest,  or  began  to  bear  interest ;  and,  if  the  covenant  does  not 
show  that,  it  may  be  shown  by  proof  aliunde.^  So,  in  an  action 
brought  by  the  vendee  for  a  breach  of  the  covenant  to  convey,  the 
purchase-money  having  been  fully  paid  before  or  at  the  execution 
of  the  covenant,  the  plaintiff  is  entitled  to  recover  the  amount 
paid  with   interest,  for   a   period   not   to   exceed   six   years.^(&) 

1  6  B.  &  C.  31.  *  Thompson  v.  Guthrje,  9  Leigh,  101, 107. 

2  17  Wend.  71.  5  Herndon  v.  Venable,  7  Dana,  371. 

3  T.  Ray.  77.  6  Fletcher  v.  Button,  6  Barb.  646. 

(a)  See  p.  115.  that  the  vendee  cannot  recover  the  pur- 

(b)  In  this  case  it  was  suggested,  that  chase-monej'  as  such,  while  he  remains  in 
perhaps  a  more  stringent  rule  might  be  possession  and  fails  to  restore  the  vendor 
adopted,  and  the  plaintiff  be  allowed  to  to  liis  situation  before  the  sale ;  the  dis- 
recover  the  value  of  the  land  at  the  time  tinction  has  been  made,  that  an  action 
of  the  refusal  to  convey,  with  interest  will  lie  to  recover  damages  for  breach  of 
from  that  time.  Fletcher  v.  Button,  6  the  covenant  to  convey,  although  the 
Barb.  647.  plaintiff  is   still  in  possession.     Nor  will 

Allen,  J.,  in  the  course  of  an  elaborate  he  be  confined  to  mere  nominal  damages, 
examination  of  the  decided  cases,  re-  because  the  contract  is  one  for  the  title 
marks,  "  Although  it  has  been  often  held,     to,  not  mere  possession  of,  the  premises." 


CHAP.    XXXIV.]  DAMAGES.  523 

So,  in  a  leading  case  upon  this  subject,^  often  referred  to  and 
commented  on  in  subsequent  decisions,  it  was  held,  that,  where 
the  title  proves  (without  collusion)  defective,  the  purchaser 
is  entitled  to  no  satisfaction  for  the  loss  of  his  bargain.  In 
that  case,  the  vendor,  the  defendant,  was  the  owner  of  the  estate, 
but,  the  title  being  objectionable,  he  offered  the  vendee,  the  plain- 
tiff, his  election,  either  to  take  it  as  it  was,  or  receive  back  his 
deposit  with  interest  and  costs.  And  it  was  held,  this  offer  being 
refused,  that  the  plaintiff  could  recover  no  more  than  that  amount. 
6.  There  is  a  class  of  cases,  however,  in  which  it  has  been  held, 
that  the  measure  of  damages  in  an  action  of  this  description  is  not 
the  price  paid,  or  the  loss  suffered  bv  the  plaintiff,  upon  the  sup- 
position that  this  price  precisely  equalled  the  value  of  the  laud ; 
but  the  injury  sustained  by  him  in  consequence  of  the  defendant's 
breach  of  contract ;  or  the  value  of  the  land  at  the  time  when  it 
should  have  been  conveyed,  without  reference  to  the  price,  where 
the  latter  has  been  paid,  and,  if  not  paid,  the  excess  of  such 
value  over  the  price. (a)  As  has  been  already  stated,  this  is  the  rule 
uniformly  recognized,  where  the  vendor  has  not  acted  in  good 
faith ;  but  it  has  by  no  means  been  always  restricted  by  such  a 
limitation.  Thus  it  is  said,  with  much  force,  in  reference  to  the 
rule  which  makes  the  price  to  be  the  measure  of  damages,  "  Such 
a  rule  would  tempt  the  vendor,  in  any  case  where  the  property 
increased  in  value,  to  violate  his  contract.  The  proper  criterion 
is,  the  value  of  the  land  at  the  time  when  the  title  should  have 
been  made."     And  this  view  is  said  to  be  fortified  by  the  con- 

1  Flureau  v.  Thornliill,  2  Black.  1078.1 

(a)* Evidence    is   admissible    of   such  Tiius  evidence  as  to  sales  from  June,  the 

value  at  and  about,  before  and  after,  tlie  time  of  breach,  to  the  following  March, 

time ;  the  limits  a.s  to  time  being  within  Barbour  v.  Nichols,  3  R.I.  187. 
the  reasonable  discretion   of  the   Court. 

1  In  the  very  recent  case  of  Lock  v.  Fur-  conrej'ance  which  contains   a  covenant,  for 

zee,  Law  Rep.  (Eng  )  August,  1866,  p.  450,  the  (juiet  enjoyment.  Here  was  a  contract  actually 

case  of  Flureau  v.  Thornhill  is  further  criti-  executed.     The  testator  expressly  bargained 

cised,  and  shown  not  applicable  to  the  cove.-  for  that  which  he   could   not   jjerforni.     The 

nants  in  a  lease  granted  by  one  who  had  no  proper   principle    upon   wiiich   the    diunuges 

title.     That  decision  is  held  to  be  an  excep-  should  be  assessed  is,  a  full  compensation  to 

tion  to  the  general  rule  of  damages.     Chan-  the   plaintiff'    for   that  which    he   has   lost." 

nail,  B.  say,  (ib.  p.  451),  "  Where  a  contract  Blackburn,  J.,  saj's  (ib.  p.  453),  "  Flureau  v. 

is  in  Jieri,  and  the  vendee  chooses  to  rescind  Thornhill  does  not  appi}'  to  an  executed  con- 

the  contract  and  sue  for  money  h:id  and  re-  tract.     There  is  no  case  (except  that  of  I'ome- 

ceived,  he  recovers  only  the  money  he  has  roy  v.  Partington,  3  T.  It.  665)  where  that  has 

actually  paid.     So,  again,  if  he  elects  to  affirm  ever  been  suggested.     The   American  cases 

the  contract,  and  to  sue  for  the  breach,  he  is  are  infinitely  various."     Flureau  v.  Thornhill 

entitled  only  to  nominal  damages.     Tliis  is  a  is    further    criticised,    though    substantially 

contract  which  the  defendant's  testator   has  affirmed,  in  Engel  v.  Fitch,  Law  Kep.  (Lng.) 

executed  as  far  as  he  could;  he  has  made  a  May,  1868,  p.  315. 


524  LAW   OP  VENDORS   AND   PURCHASERS.      [CHAP.  XXXIV. 

sideration,  that  the  vendee  may  demand  specific  performance,  if 
the  vendor  has  a  title ;  or,  if  not,  have  a  suitable  allowance  in 
chancery  for  his  improvements.^  So  it  is  said  by  the  Supreme 
Court  of  the  United  States,  "  The  rule  is  settled  in  this  court, 
that  in  an  action  by  the  vendee  for  a  breach  of  contract  on  the 
part  of  the  vendor,  for  not  delivering  the  article,  the  measure  of 
damages  is  its  price  at  the  time  of  the  breach.  The  price  being 
settled  by  the  contract,  which  is  generally  the  case,  makes  no 
difference,  nor  ought  it  to  make  any ;  otherwise  the  vendor,  if  the 
article  have  risen  in  value,  would  always  have  it  in  his  power  to 
discharge  himself  from  his  contract,  and  put  the  enhanced  value 
in  his  own  pocket.  Nor  can  it  make  any  difference  in  principle, 
whether  the  contract  be  for  the  sale  of  real  or  personal  property, 
if  the  lands,  as  is  the  case  here,  have  not  been  improved  or  built 
on.  In  both  cases,  the  vendee  is  entitled  to  have  the  thing  agreed 
for,  at  the  contract  price,  and  to  sell  it  himself  at  its  increased 
value.  If  it  be  withheld,  the  vendor  ought  to  make  good  to  him 
the  difference.  This  is  not  an  action  for  eviction,  nor  is  the  Court 
now  prescribing  the  proper  rule  of  damages  in  such  a  case."  ^  So 
it  is  laid  down,  in  general  terms,  that,  in  an  action  for  breach  of  a 
covenant  or  agreement  to  convey  real  estate  or  a  bond  for  title, 
the  measure  of  damages  is  the  value  of  the  estate  at  the  time  of 
the  breach  ;  but  that  interest,  as  such,  is  not  recoverable.^ 

7.  As  has  been  already  stated,  the  rule  in  qviestion  has  been 
sometimes  restricted  to  cases  of  fraud  on  the  part  of  the  vendor. 
That  fraud,  however,  may  be  merely  constructive,  and,  as  will 
be  seen,  has  often  been  inferred  from  slight  circumstances.  The 
general  rule,  as  thus  qualified,  has  been  laid  down  in  a  late  case,^ 
as  follows :  Where  the  vendor,  without  fraud  on  his  part,  is  incom- 
petent to  make  out  a  title,  the  vendee  is  not  entitled  to  damages 
for  the  loss  of  his  bargain,  beyond  the  money  paid,  with  interest 
and  expenses,  although  the  completion  of  tlie  bargain  might  have 
been  profitable  to  him.  But  where  the  vendor  is  guilty  of  collu- 
sion, tort,  artifice,  and  fraud,  to  escape  from  a  bad  bargain,  the 

1  Bryant  v.  Harabrick,  9  Geo.  134;  6  Harr.  &  John.  297;  Stephenson  y.  Har- 
Burrv.  Todd,  41  Penn.  206;  3  R.I.  187.  rison,  3  Litt.  170;  Duncan  v.  Tanner,  2 

2  Per  Livingston,  J.,  Hopkins  v.  Lee,  J.  J.  Marsh.  399 ;  Rutledge  v.  Lawrence, 
6  Wheat.  118.  1  A.  K.  Marsh.  396  ;  Bryant  v.  Hambrick, 

3  Shaw  V.  Wilkins,  8  Humph.  647  ;  9  Geo.  133 ;  Marshall  v.  Haney,  9  Gill, 
McKee  v.  Brandon,  2  Scam.  339;  Buck-  251  ;  4  Md.  498;  Whiteside  v.  Jennings, 
master  v.  Grundy,  1   Scam.  310 ;    Hop-  19  Ala.  784. 

kins  V.  Yowell,  5  Yerg.  305 ;  Hopkins  v.         *  Bitner    v.   Brough,    11    Penn.   127, 
Lee,  6  Wheat.  109 ;  Cannell  v.  McClean,    139. 


CHAP.   XXXIV.] 


DAMAGES. 


525 


vendee  is  entitled,  not  only  to  compensatory  damages,  but  to 
damages  arising  from  the  loss  of  the  bargain,  or  the  money  he 
might  have  derived  from  its  completion.  Rogers,  J.,  says,  "  The 
distinction  is,  whether  the  vendor  acts  with  good  or  bad  faith.  If 
the  refusal  of  the  wife  to  execute  the  deed  i§  a  mere  pretext,  the 
result  of  collusion  at  the  instigation  of  the  husband  to  rid  himself 
of  an  improvident  contract,  the  price  having  risen  in  the  interme- 
diate time  between  making  the  agreement  and  its  completion,  he 
must  respond  for  the  difference  in  value.  Justice  and  good  policy 
require  this  to  be  the  rule,  for  otherwise  the  advantage  would  be 
entirely  on  the  side  of  a  vendor,  who  would  be  often  under  great 
temptation  to  violate  his  contract,  when  the  difference  in  price  was 
so  great  as  to  excite  his  cupidity. "(a)     So,  where  a  vendor  knew 


(a)  The  following  case  is  found  in 
"  The  Legal  InteUigencer."  (McNamara 
V.  Mcllhenny) :  — 

Rule  for  a  new  trial.  Opinion  by 
Thayer,  J. :  "  This  was  an  action  of  as- 
sumpsit by  vendee  against  vendor  for 
breach  of  a  contract  to  sell  a  house.  It 
jvppeared  upon  the  trial  that  the  defendant 
had  authorized  an  agent  to  sell  a  house 
belonging  to  her  in  Seventeenth  Street, 
that  the  agent  effected  a  sale  to  the  plain- 
tiff, and  received  four  dollars,  on  account 
of  the  purchase-money,  which  was  $1,175. 
The  defendant  refused  to  ratify  the  sale 
or  to  convey  the  property.  The  only 
question  on  the  trial  was  as  to  the  meas- 
ure of  damages,  the  defendant  contend- 
ing that  the  plaintiff  could  only  recover 
what  he  had  paid  on  account,  with  any 
expenses  he  might  have  been  subjected  to 
in  consequence  of  the  defendant's  refusal, 
and  the  plaintiff  insisting  that  the  defend- 
ant's refusal  to  convey  was  wrongful  and 
fraudulent,  and  that  in  such  cases  the 
plaintiff  might  recover  not  only  the 
nioney  paid  and  the  expenses,  but  also  the 
difference  between  what  the  vendee  had 
agreed  to  pay  and  what  the  property  was 
really  worth  when  the  vendee  ought  to 
have  co.nveyed.  The  instruction  given  to 
the  jury  was  in  accordance  with  the  view 
urged  by  the  plaintiff  and  they  found 
a  verdict  for  the  plaintiff,  for  $329. 

"  There  has  been  much  controversy  in 
the  courts  upon  this  subject,  and  the  de- 
cisions are  by  no  means  uniform,  either  in 
Pennsylvania  or  the  other  States  of  the 
Union.  In  Hertzog  v.  ITertzog's  Adm'r, 
10  Casey,  418 ;  Dumars  v.  Miller,  ib.  319  ; 
and  Graham  v.  Graham's  Exec'rs,  ib. 
475;  the  Supreme  Court  overruled  Jack 
V.  McKee,  9  Barr,  235 ;  Ogle  v.  McDow- 
ell, 9  Harr.  417 ;  Malawn  v.  Ammon ;  1 


Grant,  123,  and  other  kindred  cases,  and 
decided  that  in  an  action  for  the  breach  of 
a  parol  contract  for  the  conveyance  of 
land,  the  measure  of  damages  is  the  con- 
sideration actually  paid  and  the  expenses 
and  trouble  incurred  and  that  the  plaintiff 
cannot  recover  damages  for  the  loss  of  the 
bargain.  It  may  be  remarked,  however, 
that  the  cases  of  Hertzog  v.  Hertzog's 
Adm'r,  and  Graham  v.  Graham's  Exec'rs, 
were  cases  of  actions  against  the  personal 
representatives  of  a  decedent  upon  alleged 
contracts  of  the  decedents  to  reward  the 
respective  plaintiffs  for  services  rendered, 
by  a  conveyance  of  land.  They  were 
cases,  therefore,  in  which  personal  repre- 
sentatives might  well  refuse  to  execute  a 
conveyance  or  to  pay,  without  the  judg- 
ment of  a  Court  protecting  them  in  so  do- 
ing. In  Hertzog  v.  Hertzog's  Adm'r,  10 
Casey,  428,  Woodward,  J.,  who  delivered 
the  opinion  of  the  Court,  recognized  the 
principle  that  cases  of  fraud  on  tlie  part  of 
the  vendor  constitute  an  exception  to  the 
rule  there  laid  down.  He  does  the  same 
in  Dumars  v.  Miller,  10  Casey,  322,  323, 
where  he  sa3's  that  a  vendor  wlio  without 
fraud  is  unable  to  convey  the  title  to  real 
estate  which  he  agreed  to  convey  is  sub- 
ject to  a  measure  of  damages  that  regards 
the  consideration  paid,  or  where  it  lias  not 
been  paid  the  exj)enscs  and  trouble  in- 
curred by  the  vendee.  It  is  also  worthy 
of  remark  that  Judge  Woodward  in  deliv- 
ering the  opinion  in  Hertzog  v.  Hertzog's 
Adm'r,  refers  to  Bitner  v.  Brough,  1  Jones, 
127,  without  overruling  it.  In  Bitner  v. 
Brough,  which  is  not  mentioned  in  the 
category  of  cases  overruled  by  Hertzog  v. 
Hertzog's  Adm'r,  it  was  decided  tliat 
where  the  vendor  without  fraud  on  his 
part  is  incompetent  to  make  out  a  title,  the 
vendee  is  not  entitled  to  damages  for  the 


526  LAW   OF   VENDORS    AND    PURCHASERS.      [CHAP.  XXXIV. 

that  he  could  not  make  a  title  to  the  land,  and  tlie  time  when  the 
contract  was  to  have  been  performed  did  not  appear ;  held,  the 
value  of  the  land  at  the  time  of  swearing  the  jury  should  be  the 
measure  of  damages.^  So,  in  an  action  on  an  agreement  to  con- 
vey land,  where  the  plaintiff  had  paid  the  consideration,  and  the 
defendant  had  fraudulently  omitted  in  the  deed  of  conveyance 
part  of  the  land  contracted  for ;  it  was  held  not  to  be  error,  that 
the  judge  told  the  jury,  that  though,  as  a  general  rule,  the  value  of 
the  property  was  the  measure  of  damages,  yet  they  were  not 
imperatively  restricted  to  that  standard,  but  might  include  in  their 
verdict  the  necessary  expenses  of  the  plaintiff,  if  they  deemed  it 
prudent  and  reasonable  to  do  so.^  So,  in  an  action  for  the  breach 
of  a  contract  to  exchange  lands,  the  measure  of  damages  is  the 
difference  in  the  value  of  the  premises  agreed  to  be  exchanged, 
together  with  the  expense  of  preparing  the  plaintiff's  title  papers, 
and  the  abstract  tendered.  And  such  damages  may  be  recovered, 
though  no  special  damage  be  alleged.-^  So  a  purchaser,  before  any 
conveyance  to  him,  put  iip  the  estate  for  sale  in  lots  by  auction, 
and  engaged  to  make  a  good  title  by  a  certain  day,  which  he  was 
unable  to  do  for  want  of  such  conveyance.  Held,  a  purchaser  of 
certain  lots  might,  in  an  action  for  not  making  a  good  title,  recover 
not  only  the  expenses  which  he  had  incurred,  but  also  damages  for 
the  loss  which  he  sustained  by  not  having  the  contract  carried  into 
effect.  The  judge,  on  the  trial,  told  the  jury  they  were  not 
bound  to  confine  their  verdict  to  nominal  damages,  and  a  verdict 
was  rendered  for  the  plaintiff  for  £70,  which  the  Court  of  King's 

1  McConnel  v.  Dunlap,  Hard.  41.  3  Fagen  v.  Davison,  2  Duer,  153. 

2  Lee  V.  Dean,  3  Whart.  816. 

loss  of  his  bargain  beyond  the  money  paid  for  applying  a  different  measure  of  dam- 
■with  interest  and  expenses,  but  where  the  ages  to  tlie  different  classes  of  cases  men- 
vendor  is  guilty  of  collusion,  tort,  artifice,  tioned.  The  majority  of  the  court,  how- 
and  fraud  to  escape  from  a  bad  bargain,  ever,  are  of  the  opinion  that  the  case  now 
the  vendee  is  entitled  not  only  to  conipen-  before  the  court  is  within  the  principle 
satory  damages,  but  to  damages  arising  ruled  in  ilertzog  v.  Hertzog's  Adm'r,  and 
from  the  loss  of  the  bargain.  And  I  do  should  be  governed  by  it.  Upon  that 
not  find  that  this  case  is  anywhere  ex-  point  I  have  great  doubt  and  I  incline  to 
pressly  overruled.  There  would  seem  to  the  contrary  opinion.  I  agree,  however, 
be  very  good  ground  for  distinguishing  that  inasmuch  as  the  defendant  in  this 
between  cases  where  the  plaintiff  seeks  to  case  has  no  bill  of  exceptions  and  the 
recover  the  value  of  land  which  lie  alleges  point  raised  is  one  of  much  importance, 
a  decedent  promised  to  give  him  for  his  there  ought  to  be  a  new  trial,  in  order  that 
services  or  cases  in  which  the  vendor  she  may  take  her  case  to  the  Supreme 
without  any  fraud  is  unable  to  make  a  Court  if  it  should  be  decided  against  her. 
good  title,  and  cases  in  which  the  vendor  The  rule  for  a  new  trial  is  made  abso- 
wrongfuUy  and  fraudulently  refuses  to  lute." 
convey  in  pursuance  of  his  contract,  and 


CHAP.    XXXIV.]  DAMAGES.  527 

Bench  refused  to  disturb.  Abbot,  C.J.,  says,  "If  it  is  advanced 
as  a  general  proposition  that  when  a  vendor  cannot  make  a  good 
title,  the  purchaser  shall  recover  nothing  more  than  nominal  dam- 
ages, I  am  by  no  means  prepared  to  assent  to  it."  Bayley,  J., 
says,  "  Here  the  vendor  had  nothing  but  an  equitable  title.  Now 
where  a  vendor  holds  out  an  estate  as  his  own,  the  purchaser  may 
presume  that  he  has  had  a  satisfactory  title,  and  if  he  holds  out  as 
his  own  that  which  is  not  so,  I  think  he  may  very  fairly  be  com- 
pelled to  pay  the  loss  which  the  purchaser  sustains  by  not  having 
that  for  which  he  contracted."  ^ 

8.  It  has  been  held,  that,  where  the  vendor,  from  inability 
to  make  a  title,  fails  to  complete  the  sale,  the  purchaser  cannot 
recover,  as  damages,  expenses  incurred  previously  to  the  contract ; 
nor  the  expense  of  a  survey  of  the  estate  ;  nor  of  a  conveyance ; 
nor  the  extra  costs  of  a  chancery  suit,  in  which  the  vendor  is 
defeated ;  nor  losses  sustained  by  the  resale  of  stock  prepared  for 
the  estate.  But  he  is  entitled  to  recover  the  expense  of  comparing 
deeds,  searching  for  judgments,  and  of  journeys  for  that  purpose  ; 
and  interest  on  his  deposit  money .^ 

9.  While  the  measure  of  damages  has  in  some  cases  been  made 
to  depend  upon  the  lona  fides  of  the  vendor,  the  general  rule  of  law, 
by  which  a  party  is  not  allowed  to  recover  damages  for  a  loss 
sustained  even  in  part  by  his  own  fault  or -negligence,  has  been 
applied  to  a  vendee  who  is  thus  chargeable.  Thus,  the  plaintiff 
having  contracted  with  the  defendant  for  the  purchase  of  an 
estate,  the  defendant  bond  fide  delivered  an  abstract,  showing 
a  good  title ;  and  the  plaintiff,  before  he  examined  it  with  the 
original  deeds,  contracted  to  resell  several  portions  of  the  property 
at  a  considerable  profit.  Upon  a  subsequent  examination  of  the 
abstract  with  the  deeds,  the  plaintiff  discovered  that  the  title  was 
defective;  and  thereupon  the  sub-purchasers  refused -to  complete 
their  purchases,  and  he  refused  to  complete  his  purchase  from  the 
defendant,  and  brought  an  action,  wherein  he  claimed  as  damages 
the  expense  of  investigating  the  title,  the  profit  that  would  have 
accrued  from  the  resale,  the  expense  attending  the  resale,  and  the 
sums  which  he  was  liable  to  pay  to  the  sub-contractors  for  the  ex- 
penses incurred  by  them  in  examining  the  title.  Held,  he  was 
entitled  to  recover  only  the  expenses  that  he  had  incurred  in  the 

1  Hopkins   v.  Grazebrook,  6  Barn.  &,         ^  Hodges   v.  Litchfield,   1   Bing.   n.s. 
Cress.  31,  a  very  leading  case.  492. 


528 


LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXXIV. 


investigation  of  tlie  title,  and  nominal  damages  for  the  breach 
of  contract,  as  no  fraud  could  be  imputed  to  the  vendor.  Bayley, 
J.,  says,  "The  plaintiff  must  show  that  the  damages  which  he 
seeks  to  recover  arose  from  the  acts  of  the  defendants,  and  not 
from  his  own  haste.  If  the  abstract  had  been  examined  with  the 
deeds  and  found  correct,  the  plaintiif  might  perhaps  have  been 
justified  in  acting  on  the  faith  of  having  the  estate  ;  and  if  after 
that  time  he  had  made  a  sub-contract,  I  think  he  would  have  been 
entitled  to  recover  the  expenses  attending  it  if  it  failed  in  conse- 
quence of  any  defect  in  the  title  of  his  vendor.  And,  further,  if 
there  were  mala  fides  in  the  original  vendor,  but  not  otherwise. 
I  am  not  prepared  to  say  that  the  purchaser  might  not  recover  the 
profit  which  would  have  arisen  from  the  resale.  But  if  premises 
for  which  a  party  has  contracted  are  by  him  offered  for  resale  too 
soon,  that  is  at  his  own  peril,  and  the  damage,  if  any,  resulting 
from  such  offer,  arises  from  his  own  premature  act,  and  not  from 
the  fault  of  his  vendor.  Here  I  think  the  plaintiff  was  premature, 
and  therefore  cannot  recover."  ^(a) 

1  Walker  v.  Moore,  10  Barn.  &  Cress.  416,  421. 


(a)  The  following  miscellaneous  points 
illustrate  the  subject  of  this  chapter :  — 

Where  a  party  agrees  to  demise  cer- 
tain premises  to  another,  who  breaks  up 
his  establishment,  and  proceeds  with  his 
family  and  furniture  to  the  place  where 
the  premises  are  situate,  and  the  landlord 
refuses  to  give  possession,  the  tenant  is 
entitled  to  recover  the  damages  sustained 
by  such  removal,  although  special  damage 
is  not  alleged.  Driggs  v.  Dwight,  17 
Wend.  71.1 

Deficiency  of  quantity,  if  so  great  as  to  de- 
feat the  object  of  a  purchase,  is  good  cause 
for  rescinding  a  contract  for  lands.  And  it 
may  be  set  off  in  discount  against  the  bonds 
given  for  the  consideration.  Pringle  v. 
Witten,  1  Bay,  256.  As  where  a  mill-seat 
was  the  object  of  the  purchase  of  a  tract  of 
land,  and  was  taken  away  by  an  elder 
grant.    Gray  v.  Handkinson,  1  Bay,  278. 

Where  a  vendor  omits  to  make  out 
a  good  title  within  the  stipulated  time, 
and  the  vendee  dies,  his  executor  may 
sue  for  damage  incurred  by  loss  of  interest 
on  the  deposit-money  and  the  expense  of 
investigating  the  title.  Orme  v.  Brough- 
ton,  10  Bing.  533. 


If  specific  execution  of  a  contract  to 
convey  is  decreed  in  favor  of  heirs ;  and 
the  personal  representative  also  recovers 
damages  for  the  breach  in  failing  to  con- 
vey :  the  covenantor  may  be  relieved  from 
the  double  burden,  in  equity.  Combs  v. 
Tarlton,  2  Dana,  464. 

In  an  action  upon  a  contract  to  convey, 
the  plaintiff  is  restricted  to  the  recovery 
of  damages  sustained  prior  to  the  com- 
mencement of  the  action.  Warner  v. 
Bacon  (Mass.)  Law  Rep.  Nov.  1856,  p.  406. 

One  who  has  been  induced  to  purchase 
land  of  another  and  to  pay  him  for  it  by 
the  fraudulent  representations  of  a  third 
person,  interested  to  effect  such  a  sale, 
cannot  in  a  Court  of  Equity  recover  the 
amount  so  paid  of  such  third  person, 
and  require  him  to  receive  a  conveyance 
of  the  land.  Woodman  v.  Freeman,  25 
Maine,  531. 

Where  the  amount  of  the  purchase- 
money  to  be  reimbursed  by  the  vendor, 
on  account  of  a  deficiency  in  the  quantity 
of  land  agreed  to  be  conveyed,  is  capable 
of  being  ascertained  by  computation,  it  is 
a  proper  case  for  a  tender.  Walling  v. 
Kinnard,  10  Tex.  508. 


1  The  tenant  in  such  case  is  not  bound  to  the  refusal  to  give  possession,  that  the  land- 
prove  that  he   demanded   a   lease   from   the  lord  did  not  intend  to  perform  the  contract, 
landlord,  or  tendered  one  executed  by  him-  Ibid, 
self,  especially  if  it  be  shown  in  addition  to 


CHAP.    XXXIV.] 


DAMAGES. 


529 


The  net  sum  only,  without  interest, 
can  be  recovered  in  an  action  for  money 
had  and  received.  Walker  v.  Constable, 
1  Bos.  &  Pull.  300. 

Lands  of  the  defendant  were  put  up  by 
him  at  auction;  of  whicli  one  condition 
was,  that  the  purchaser  should  pay  a 
deposit  and  half  the  auction  duty.  The 
plaintiff  purchased,  and  paid  accordin<?ly, 
and  signed  a  written  memorandum  of  the 
contract,  which  J.  N.,  the  auctioneer's 
clerk,  also  signed  as  follows:  "Witness, 
J.  N."  J.  N.  received  the  above  sums  for 
M.,  the  auctioneer,  and  signed  the  receipt 
(being  authorized  by  M.  to  do  so)  as  fol- 
lows :  "For  Mr.  M.  J.  N."  Money  was 
afterwards  paid  over  by  the  auctioneer  on 
the  purchase  to  B.,  the  defendant's  attor- 
ney, as  his  agent.  The  defendant  not 
being  able  to  make  out  his  title,  B.,  as  his 
agent,   wrote  a  letter  to  the    plaintifTs 


attorney,  naming  the  plaintiff  and  defend- 
ant, saying  that  ho  could  not  make  out  the 
title  to  "this  i)roi)erty  as  freehold,"  advis- 
ing the  plaintiff  to  "relinquish  his  ])ur- 
chase  "  and  referring  to  the  "cliargcs"  to 
be  made  by  the  plaintiff's  attorney.  Held, 
that  J.  N.  did  not  sign  the  memorandum 
as  agent  to  the  defendant;  that  neitiier 
his  agency  nor  the  contract  was  recogniz- 
ed by  the  receipt  of  the  money  or  B.'s 
letter ;  that  there  was,  consequently,  no 
proof  of  a  contract  to  make  a  title,  on 
which  the  defendant  could  be  charged 
under  §  4  of  the  Statute  of  Frauds ;  and 
therefore,  that,  although  the  plaintiff 
might  recover  the  deposit  and  moiety  of 
auction  duty  as  money  had  and  received, 
he  could  not  recover  interest  thereon,  nor 
his  expenses  of  investigating  the  title. 
Gosbell  V.  Archer,  2  Ad.  &  Ell.  500 ;  4 
Nev.  &  Man.  485. 


84 


530  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 


CHAPTER    XXXV. 

LIQUIDATED   DAMAGES   AND   PENALTIES  ;    ARBITRATION ;    DAMAGES   IN 

EQUITY. 

1.  The  amount  of  damages  to  be  recovered  by  a  vendor  or  pur- 
chaser of  real  estate  is  sometimes  regulated,  as  in  other  contracts, 
by  the  express  agreement  of  the  parties,  making  their  own  appraise- 
ment or  valuation  of  the  injury  which  will  be  caused  by  a  violation 
of  the  agreement.  Damages  thus  mutually  agreed  upon  are  termed 
liquidated  or  stipidated  damages,  and  can  neither  be  increased  nor 
diminished  by  an  inquiry  into  the  true  amount  of  the  loss  sustained 
by  the  plaintiff  in  the  action.  The  question,  however,  often  arises, 
whether  the  sum  mentioned  in  the  contract  is  to  be  regarded  in 
this  light,  or  a^  a  mere  penalty,  which,  by  a  well-established  rule  of 
law,  may  be  treated  as  only  a  security  for  the  due  performance 
of  the  agreement,  leaving  the  question  open  as  to  the  sum  to  be 
recovered,  according  to  the  circumstances  of  the  case. 

2.  Upon  this  subject  it  is  said,  "  The  law  will  permit  parties  to 
determine,  by  an  agreement  which  enters  into  the  contract,  what 
shall  be  the  damages  which  he  who  violates  the  contract  shall  pay 
to  the  other ;  but  it  does  not  always  sanction  or  enforce  the  bar- 
gain they  may  make  on  this  subject.  Damages  thus  agreed  upon 
beforehand,  when  sanctioned  by  the  law,  are  called  liquidated 
damages.  Where  the  parties  make  this  agreement,  but  not  in  such 
wise  that  the  law  adopts  it,  then  the  damages  thus  agreed  upon  are 
a  penalty,  or  in  the  nature  of  a  penalty.  And  the  question  whether 
damages  agreed  upon  are  to  be  treated  as  liquidated,  or  as  in  the 
nature  of  a  penalty  and  therefore  disregarded,  often  occurs,  and  is 
not  always  of  easy  or  obvious  solution."  ^  So  it  is  said,  for  the 
purpose  of  determining  this  question,  "The  subject-matter  of  the 
contract  may  be  inquired  into,  so  far  as  respects  the  situation  of 
the  parties  and  the  facts  relating  to  the  agreement ;  not,  however, 
for  the  purpose  of  controlling  the  language,  where  that  is  clear  and 

1  2  Pars,  on  Contr.  433. 


CHAP.    XXXV.]     LIQUIDATED    DAMAGES   AND   PENALTIES. 


531 


explicit,  but  to  ascertain  tlic  circumstances  out  of  which  the  con- 
tract originated,  and  especially  in  regard  to  the  consideration."  ^(a) 

1  Per  Hubbard,  J.,  Hodges  v.  King,  7  Met.  586. 


(«)  The  question  referred  to  in  the  text 
has  not  ordinarily  been  raised  in  relerenee 
to  a  bond  with  pi'iialti/,  the  amount  of  sucli 
penalty  being  usually  made  subject,  as  the 
term  itself  implies,  to  the  abatement  or 
reduction  in  chancery,  required  by  the 
circumstances  of  the  case.  But,  in  a  late 
case,  in  Massachusetts,  where  the  penalty 
of  a  bond  was  in  the  usual  form,  and  no 
provision  made  for  liquidated  damages  ; 
it  was  still  held,  that  the  amount  of  the 
penalty  should  be  the  measure  of  the  dam- 
ages. Hubbard,  J.,  says,  "  The  bond  has 
indeed  a  condition ;  but  that  is  matter  of 
form,  and  cannot  turn  that  into  a  penalty 
■which,  but  for  the  form,  is  an  agreement 
to  pay  a  precise  sum  under  certain  cir- 
cumstances. And  the  agreement  to  pay 
interest  on  the  sum  is  a  strong  corrobora- 
tion of  this  construction  of  the  instrument ; 
as  in  penal  bonds  such  a  provision  is  not 
made,  but  the  party  relies  on  the  penalty 
as  the  means  of  furnishing  full  indemnity 
for  all  that  may  be  payable  for  a  breach 
of  the  condition."     7  Met.  588. 

The  defendant  agreed  to  take  an  as- 
signment of  the  plaintifTs  house  and  prem- 
ises, without  requiring  the  lessor's  title  ; 
that  he  would  pay  £2,300  for  it,  and  also 
the  amount  of  goods,  fixtures,  and  effects, 
and  take  possession  of  the  house  on  or 
before  September  29th.  The  plaintiff 
agreed  to  give  up  possession  of  the  prem- 
ises, effects,  and  stock  by  that  day,  to 
assign  licenses,  to  repair  or  allow  for  all 
damaged  outside  windows,  and  to  clear 
rent,  taxes,  and  out-goings  to  the  day  of 
quitting  possession.  The  expenses  of  the 
agreement  were  to  be  paid  by  the  parties 
in  equal  moieties;  and  either  party,  not 
fulfilling  all  and  every  part,  was  to  pay 
the  other  £500,  thereby  settled  and  fixed 
as  liquidated  damages.  Held,  on  breach 
of  the  agreement  by  omission  to  take  an 
assignment,  the  defendant  was  liable  to 
pay  the  whole  £500,  and  that  it  was  not  a 
mere  penalty  to  cover  such  damages  as 
might  be  actually  incurred.  Keilly  v. 
Jones,  1  Bing.  802. 

In  an  agreement  for  the  sale  fcf  a  pub- 
lic house,  by  the  defendant  to  the  plaintiff' 
it  was  stipulated,  that  the  seller  should 
not  be  concerned  in  carrying  on  the  busi- 
ness of  a  publican  within  a  mile  from  the 
house,  "  under  the  penal  sum  of  .£500,  the 
same  to  be  recoverable  as  and  for  liqui- 
dated damages."  The  defendant  opened 
a  public  house  about  three-quarters  of  a 


mile  off.  No  evidence  of  actual  damage 
was  given  by  the  plaintiff';  but  for  the 
defendant  some  witnesses  stated,  that  the 
I)laintiff'  had  spoken  of  the  injury  as  not 
considerable.  It  was  held  at  Nisi  I'rius, 
that  the  whole  sum  was  recoverable,  as 
stipulated  damages,  but  left  to  the  jury  to 
state  what  was  the  actual  damage.  The 
jurj'  found  for  the  whole  sum,  and  the 
Court  of  Common  Pleas  refused  to  grant 
a  new  trial.  Crisdee  r.  Bolton,  3  Carr.  & 
P.  240.  Best,  C.J.,  says  (3  Carr.  &  P. 
242),  "  The  law  relative  to  litiuidated 
damages  has  always  been  in  a  state  of 
great  uncertainty.  This  has  Ijeen  occa- 
sioned by  judges'  endeavoring  to  make 
better  contracts  for  parties  than  they  have 
made  for  themselves.  I  think  tliat  the 
parties  to  contracts,  from  knowing  exactly 
their  own  situations  and  objects,  can  better 
appreciate  the  consequences  of  their  failing 
to  obtain  those  objects  than  either  judges 
or  juries.  Whether  a  contract  be  under 
seal  or  not,  if  it  clearly  states  what  shall 
be  paid  by  the  party  who  breaks  it  to  the 
party  to  whose  prejudice  it  is  broken,  the 
verdict  in  an  action  for  the  breach  of  it 
should  be  for  the  stipulated  sum.  A  Court 
of  Justice  has  no  more  authority  to  put  a 
different  construction  on  the  part  of  an 
instrument  ascertaining  the  amount  of 
damages,  than  it  has  to  decide  contrary  to 
any  other  of  its  clauses.  The  claim  for 
damages  must  depend  not  only  on  things 
which  have  been  done,  which  are  difficult 
of  proof,  but  on  what  may  be  done,  which 
it  is  impossible  to  prove.  I  cannot  sub- 
scribe to  the  doctrine  attributed  to  Lord 
Tenterden  in  Randall  v.  Everest.  If  it  be 
doubtful  from  the  terms  of  the  contract, 
whether  the  parties  mean  that  the  sum 
mentioned  in  it  shall  be  a  penalty  or  liqui- 
dated damages,  then  1  should  incline  to 
consider  the  clause  as  creating  a  penalty, 
and  not  giving  stipulated  damages.  So  if 
but  one  sum  is  mentioned,  and  there  may 
be  several  breaches,  and  it  is  not  distinctly 
stated  that  this  sum  is  to  be  paid  on  each 
breach,  I  should  hold,  as  the  Court  held 
in  Astley  r.  Weldon,  that  the  sum  men- 
tioned was  to  be  considered  only  as  a  pen- 
alty. In  this  case  the  sum  of  .C'jOO  is  to 
be'paid  for  the  doing  of  one  thing  only. 
It  is  called  a  jienal  sum,  and  I  will  admit 
that  the  parties  considered  it  as  something 
more  than  compensation ;  but  they  have 
expressly  agreed  that  this  penal  sum  shall 
be  recovered  as  and  for  stipulated  dam- 
ages." 


532  LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

3.  The  rule  is  laid  down,  that,  when  the  damages,  in  case  of  vio- 
lation of  a  contract,  will  be  uncertain  in  their  nature  and  amount, 
and  the  parties  have  stipulated  that,  in  the  event  of  a  breach, 
a  certain  sum  shall  be  paid  by  the  party  in  default  as  liquidated 
damages ;  that  sum  will  be  treated  as  the  measure  of  damages. 
Thus  A.  contracted  to  sell  land  and  goods  to  B.,  for  which  B.  agreed 
to  pay  a  certain  sum,  delivery  and  payment  to  be  made  at  a  future 
day ;  the  party  who  failed  to  perform  his  part  of  the  agreement  to 
pay  the  other  $1,000.  Held,  that  A.,  having  performed  or  offered 
to  perform  his  part  of  the  contract,  was  entitled  to  recover  $1,000 
as  liquidated  damages. ^  Strong,  J.,  says,^  "  There  are  various 
legal  rules  for  ascertaining  whether  a  sum  named  in  a  contract,  to 
be  paid  by  a  defaulting  party,  was  intended  as  liquidated  damages, 
or  as  a  penalty  merely.  Among  these  rules  is  one  well  established 
by  numerous  decisions,  that  wlien  a  contract  is  such  that  the  dam- 
ages, in  case  of  a  violation  of  it,  will  be  uncertain  in  their  nature 
and  amount,  and  the  parties  have  stipulated  that  in  the  event  of  a 
breach  a  certain  sum  shall  be  paid  by  the  party  in  default,  as  liqui- 
dated damages,  they  will  be  regarded  as  having  so  intended,  and 
that  sum  will  be  treated  as  the  measure  of  damages.  The  sum 
agreed  upon  as  damages,  was  designed  as  the  damages  for  a  total 
non-performance.  The  case  is  not,  therefore,  one  of  a  contract, 
with  several  stipulations  of  various  degrees  of  importance,  as  to 
some  of  which  the  damages  might  be  considered  liquidated,  whilst 
for  others  they  may  be  deemed  unliquidated,  and  a  sum  of  money 
is  made  payable  on  the  breach  of  any  of  them ;  nor  is  it  the  case 
of  a  larger  sum  stipulated  as  damages  for  the  non-payment  of  a 
smaller  one ;  in  which  cases  the  courts  have  held  the  sum  named, 
although  denominated  liquidated  damages,  a  penalty.  Indeed,  the 
contract  in  question,  in  legal  effect,  provides  for  a  single  act,  on 
each  side,  —  the  sale  of  the  land  and  goods  by  the  plaintiff,  and 
the  payment  therefor  by  the  defendant.  Notwithstanding  the  form 
of  the  contract,  it  is  apparent  that  what  was  to  be  done  by  each  of 
the  parties,  was  regarded  by  them  as  much  an  entire  thing  as  if  it 
had  formed  the  subject  of  a  single  stipulation."  But  where  an 
agreement  not  under  seal  for  the  lease  oi  a  public  house  contained 
a  clause,  that  the  party  neglecting  to  comply  with  his  part  of  the 
agreement  should  pay  the  sum  of  XlOO,  mutually  agreed  upon  to 

1  Mundy  v.  Culver,  18  Barb.  336.  2  ibid.  338,  339. 


CHAP.    XXXV.]     LIQUIDATED   DAMAGES   AND    PENALTIES.  533 

be  the  damages  ascertained  and  fixed  on  breach  thereof;  held,  the 
party  making  a  default  was  not  liable  beyond  the  damages  actually 
sustained.^  Abbott,  C.J.,  says,'-^  "  A  great  deal  has  been  said 
about  the  different  import  of  the  terms  penalty  and  stipulated  dam- 
ages ;  but  I  am  of  opinion,  and  shall  always  hold  so  until  compelled 
by  a  higher  authority  to  say  otherwise,  that  whether  the  term  pen- 
alty or  liquidated  damages  be  used  in  the  agreement,  a  party  who 
claims  compensation  for  a  default  shall  only  be  allowed  to  recover 
what  damage  he  has  really  sustained.  Whatever  language  the 
parties  may  choose  to  use,  I  am  of  opinion,  in  point  of  law,  that  a 
jury  cannot  be  called  upon  to  give  more  damage  than  the  party 
has  really  sustained.  I  confine  my  opinion  to  contracts  not  under 
seal ;  instruments  in  that  form  may,  perhaps,  receive  a  different 
construction."  So  the  defendant  agreed  to  grant  a  lease  with  the 
usual  covenants,  and  plaintiff  to  execute  a  counterpart  and  pay 
the  expenses  ;  and,  for  the  true  performance  of  the  agreement, 
each  of  the  parties  bound  himself  in  the  penalty  of  .£500,  to  be 
recovered  against  the  defaulter  as  liquidated  damages.  Held,  that 
the  .£500  must  be  considered  as  a  penalty,  and  not  as  liquidated 
damages.^  So  A.  agreed  with  B.  to  sell  him  the  stock  and  good- 
will of  his  business,  and  to  demise  to  him  his  house  in  which  the 
business  was  carried  on,  for  which  B.  was  to  pay  X800,  and  to 
take  the  furniture  and  fixtures  at  a  valuation.  They  were  after- 
wards valued  at  <£174.  £400  was  paid  to  A.  at  the  time  of  exe- 
cuting the  agreement,  and  B.  agreed  to  accept  and  pay  two  bills  of 
exchange,  one  for  £400,  payable  twelve  months  after  date,  and  the 
other  for  £174,  payable  two  months  after  date  ;  and  A.  agreed  not 
to  carry  on  the  business  within  five  miles  of  the  house.  And,  for 
the  true  performance  of  this  agreement,  each  of  them  did  thereby 
bind  and  oblige  himself  to  the  other  of  them  in  the  penal  sum  of 
£500,  to  be  recoverable  for  breach  of  the  said  agreement  in  a 
Court  of  Law,  as  and  by  way  of  liquidated  damages.  Held,  that 
this  sum  was  a  penalty,  and  not  liquidated  damages.*  Abbott,  C.J., 
says,  "  The  sum  of  .£500  is  described  in  the  same  sentence  as  a 
penal  sum  and  as  liquidated  damages.  Now  both  expressions 
cannot  be  satisfied.  We  must  therefore  look  to  the  whole  of  the 
agreement  in  order  to  ascertain  whether  the  .£500  was  intended  to 

1  Randall  v.  Everest,  2  Car.  &  P.  577 ;         '  Boys  v.  Anccll,  5  Bing.  N.C.  390. 
M.  &  M.  41.  4  Davies  v.  Penton,  6  B.  &  C.  216,  222: 

2  Ibid.  42.  9  Dowl.  &  B.y.  369. 


534  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

be  a  penalty  or  liqiiidated  damages ;  and,  considering  the  whole 
agreement,  we  think  it  was  clearly  intended  as  a  penalty."  Bay- 
ley,  J.,  says,^  "  Where  the  sum  which  is  to  be  a  security  for  the 
performance  of  an  agreement  to  do  several  acts  will,  in  case  of 
breaches  of  the  agreement,  be  in  some  instances  too  large,  and  in 
others  too  small  a  compensation  for  the  injury  thereby  occasioned, 
that  sum  is  to  be  considered  a  penalty.  It  could  not  have  been 
intended  here  to  fix  the  sum  of  X500  as  a  maximum,  if  nothing 
was  paid  in  respect  of  either  of  the  bills,  for  in  that  case  the  party 
would  be  entitled  to  receive  <£574.  In  that  case  X500  would  be 
too  small  a  compensation  for  the  breach  of  the  agreement.  On 
the  other  hand,  if  the  X400  bill  had  been  paid,  and  that  for  £174 
alone  remained  unpaid,  the  X500  would  much  exceed  fair  compen- 
sation for  that  breach  of  tlie  agreement."  Holroyd,  J.,  says,^ 
"  If  it  is  a  penalty,  the  Court  will  treat  it  as  such,  and  the  stipula- 
tion that  it  shall  be  recovered  as  liquidated  damages  will  not  pre- 
vent the  party  from  insisting  on  the  compulsory  provision  of  the 
Stat.  8  &  9  Will.  III.,  ch.  11,  §  8,  as  to  assessing  damages." 

4.  A  principal  test  of  unliquidated  damages,  even  where  there 
is  an  express  provision  that  they  shall  be  liquidated,  has  been  held 
to  be,  that  the  agreement  has  been  violated  only  in  part.  Thus  the 
plaintiff  agreed  to  convey  certain  premises  to  the  defendant  upon 
certain  payments  being  made.  A  stipulation  in  the  agreement  was, 
"  to  pay,  one  to  the  other,  the  sum  of  $500  as  liquidated  damages, 
in  case  one  of  the  parties  shall  fail  to  perform  said  contract."  The 
defendant  paid  -SlOO  of  the  purchase-money.  Held,  the  $500  was 
to  be  deemed  liquidated  damages,  but  payable  only  in  case  of  a 
total  failure  to  perform  the  contract,  and  that  the  defendant  was 
only  liable  for  actual  damages.^  So  the  defendant  gave  a  bond  to 
the  plaintift' "  in  the  full  and  just  sum  of  $500  liquidated  damages," 
to  convey  to  the  plaintiff  on  demand  3,000  feet  of  land  in  a  city  on 
the  corner  of  two  streets,  named,  including  a  certain  house  and 
shed ;  and  afterwards,  on  demand  of  the  plaintiff,  executed  a  deed 
to  him  of  a  lot  of  land,  described  by  metes  and  bounds,  at  the 
corner  of  those  streets,  with  the  buildings  thereon  standing.  The 
plaintiff  accepted  the  deed,  and  the  parties  agreed  that,  if  not  right, 
it  should  be  made  so.  A  subsequent  survey  showed,  that  the  land 
conveyed  did  not  include  the  shed,  and  contained  but  2,513  feet. 

1  6  B.  &  C.  223.  3  Lampman  v.  Cochran,  19  Barb.  388. 

2  Ibid.  224. 


CHAP.    XXXV.]     LIQUIDATED   DAMAGES   AND   PENALTIES.  535 

In  an  action  on  the  bond,  held,  as  the  plauitifif  had  accepted  the 
deed  in  part-perrormancc  of  the  bond,  the  sum  of  <f500  was  not  to 
be  regarded  as  liquidated  damages,  but  that  the  plaintiff  could 
recover  only  his  actual  damages.  Shaw,  C.J.,  says,  "  The  question, 
what  is  liquidated  damages  and  what  a  penalty,  is  often  a  difficult 
one.  It  is  not  always  the  calling  of  a  sum,  to  be  paid  for  breach 
of  contract,  liquidated  damages,  which  makes  it  so.  In  general,  it 
is  the  tendency  and  preference  of  the  law,  to  regard  a  sum  stated 
to  be  payable  if  a  contract  is  not  fulfilled,  as  a  penalty  and  not  as 
liquidated  damages ;  because  then  it  may  be  apportioned  to  the 
loss  actually  sustained.  But  without  going  at  large  into  the  sub- 
ject, one  consideration,  wo  think,  is  decisive,  against  recovering 
the  sum  in  question  as  liquidated  damages  ;  namely,  that  here  there 
has  been  a  part-performance,  and  an  acceptance  of  such  part-per- 
formance. If  the  parties  intended  the  sum  named  to  be  liquidated 
damages  for  the  breach  of  the  contract  therein  expressed,  it  was 
for  an  entire  breach.  Whether  divisible  in  its  nature  or  not,  it 
was  in  fact  divided  by  an  offer  and  acceptance  of  part-performance. 
It  is  like  the  case  of  an  obligation  to  perform  two  or  more  inde- 
pendent acts,  with  a  provision  for  single  liquidated  damages  for 
non-performance ;  if  one  is  performed,  and  not  the  other,  it  is  not 
a  case  for  the  recovery  of  the  liquidated  damages."  ^ 

5.  While  it  has  been  held  that  the  full  amount  of  a  penalty,  or 
even  of  liquidated  damages,  is  not  in  all  cases  recoverable  ;  it  has 
also  been  held,  that  the  party  for  whose  benefit  the  penalty  is  pro- 
vided does  not  thereby  lose  his  right  of  otherwise  enforcing  the 
contract.  Thus  a  proviso  was  inserted  in  articles  for  the  purchase 
of  an  estate,  that,  if  either  party  should  break  the  agreement,  he 
should  pay  £100  to  the  other.  The  defendant,  the  vendor,  on 
being  offered  two  years'  purchase  more,  accepted  it,  notwithstand- 
ing his  agreement.  Lord  Hard wi eke  decreed  a  specific  perform- 
ance of  the  articles,  remarking  as  follows :  "  As  to  the  defence  of 
the  stipulated  sum,  I  cannot  take  this,  to  let  off  either  party  when 
they  please,  but  is  no  more  than  the  common  case  of  a  penalty, 
for  it  might  be  inserted  by  the  plaintiff  in  order  to  be  paid  for  his 
trouble  of  viewing  and  measuring  the  estate,  taking  plans,  <fec., 
supposing  the  defendant  should  not  be  able  to  make  out  a  title. 
In  all  these  cases  where  penalties  are  inserted  in  a  case  of  non- 

1  Shute  V.  Taylor,  5  Met.  61,  67. 


536  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

performance,  this  has  never  been  held  to  release  the  parties  from 
their  agreement,  but  they  must  perform  it  notwithstanding."  ^ 

6.  But  upon  a  sale  of  land  at  auction,  if  the  terms  are,  that  the 
purchaser  shall  witliin  thirty  days  give  his  notes  with  two  good 
indorsers,  and,  if  he  shall  fail  to  comply  within  the  thirty  days,  then 
the  land  to  be  resold  on  account  of  the  first  purchaser  ;  the  vendor 
cannot  maintain  an  action  against  the  vendee  for  a  breach  of  the 
contract,  until  a  resale  shall  have  ascertained  the  deficit,  although 
the  vendee  should  instruct  an  attorney  to  draw  a  deed,  and  insert 
his  name  as  purchaser.  Livingston,  J.,  says,  "  The  plaintiffs 
offered  no  evidence  of  any  resale,  or  of  any  deficiency  arising 
thereon,  but  contended,  that  the  remedy  by  a  resale  was  merely 
cumulative,  and  did  not  take  away  the  right  of  action  against  the 
defendant  for  his  violation  of  the  contract.  Such  is  not  the 
opinion  of  this  Court.  The  vendee,  by  the  terms  of  sale,  had  an 
option  of  taking  the  estate  after  it  was  bid  off  to  him,  and  in  case 
of  refusal,  of  having  it  sold  again  07i  his  account.  It  might  have 
produced  more  than  on  the  first  sale,  in  which  case  the  surplus 
would  have  belonged  to  him ;  or  the  same  price  might  have  been 
obtained,  and  then  he  would  have  lost  nothing ;  or  it  might  have 
sold  for  less,  and  then  by  paying  the  difference  which  would  have 
formed  his  whole  loss,  he  would  not  have  been  exposed,  as  he 
must  be  if  this  action  proceeds  to  have  damages  assessed  against 
him,  by  some  uncertain  and  arbitrary  or  unsatisfactory  rule, 
which  might  be  adopted  by  a  jury.  Of  these  advantages  which 
were  reserved  to  him  by  the  terms  of  the  auction,  the  plaintiff  had 
no  right  to  deprive  him.  The  Court  is  further  of  opinion,  that 
nothing  which  was  done  after  the  sale  at  all  varied  the  right  of  the 
parties."  ^ 

7.  The  deposit  made  by  a  purchaser  may  be  considered  some- 
what in  the  light  of  a  penalty.  And  it  has  been  held,  in  case  of  a 
sale  hy  order  of  Court,  that,  where  a  contract  is  inequitable,  the 
purchaser,  on  submitting  to  forfeit  his  deposit,  will  be  discharged 
from  his  purchase.  The  following  remarks  of  Lord  Macclesfield 
explain  the  grounds  of  this  decision :  "  A  Court  of  Equity  ought 
to  take  notice  under  what  a  general  delusion  the  nation  was  at 
the  time  when  this  contract  was  made  by  Mr.  Frederick,  when 
there  was  thought  to  be  more  money  in  the  nation  than  there 

1  Howard  v.  Hopkins,  2  Atk.  370.   See         2  Webster  v.  Doran,  7  Cranch,  399. 
p.  435. 


CHAP.    XXXV.]     LIQUIDATED    DAMAGES   AND    PENALTIES.  537 

really  was,  which  induced  people  to  put  imaginary  values  on 
estates  ;  that  as  upon  a  contract  between  party  and  party,  the  con- 
tractor would  not  be  decreed  to  pay  an  unreasonable  price  for  an 
estate,  so  neither  ought  the  Court  to  be  partial  to  itself,  and  do 
more  upon  a  contract  made  with  itself,  or  carry  that  further,  than 
it  would  a  contract  betwixt  party  and  party.  On  the  other  hand, 
the  Court  might  be  said  to  have  rather  a  greater  power  over  a  con- 
tract made  with  itself  than  with  any  other.  That  the  deposit  was 
supposed  to  be  a  proper  pledge  for  securing  the  seller  in  case  the 
intended  purchaser  should  afterwards  go  off;  and  had  it  not  been 
sufficient,  the  other  side  might  have  moved  to  have  such  deposit 
increased ;  but  being  thought  a  sufficient  pledge,  it  was  punish- 
ment enough  if  the  party  that  made  it  was  to  lose  it,  and  satisfac- 
tion enough  to  the  seller  if  he  was  to  have  the  benefit  of  keeping 
the  deposit ;  that  in  this  case  the  deposit  was  near  a  tithe  of  the 
purchase-money ;  so  that  if  the  seller  could  get  as  much  within 
<£  1,000  of  any  other  purchaser,  he  would  be  no  loser ;  and  if  he 
could  not  get  so  much  within  X1,000,  then  it  would  appear  to  be 
dear  sold  ;  and  consequently  a  bargain  not  fit  to  be  executed  by 
this  Court,"  &c.^  But  where,  in  a  sale  at  auction,  one  of  several 
conditions  is,  that,  if  the  purchaser  shall  fail  to  comply  with  any 
of  the  conditions,  the  deposit  shall  be  forfeited  as  liquidated  dam- 
ages, such  condition  forms  no  qualification  of  the  general  promise 
to  complete  the  purchase.  Therefore,  upon  a  wrongful  abandon- 
ment of  the  contract,  on  the  part  of  the  purchaser,  the  vendor 
may  recover  damages  beyond  the  forfeited  deposit,  and  is  not 
bound  to  state  this  condition  in  declaring  upon  the  contract. 
Lord  Denman,  C.J.,  says,  "  It  is  not  meant,  by  this  condition, 
that  the  deposit  shall  be  regarded  as  liquidated  damages  as  against 
a  party  who  breaks  off  altogether.  It  is  intended  to  be  so  only  in 
case  of  a  breach  of  any  of  the  particular  conditions."  ^ 

8.  Where  A.  agreed  to  demise  a  house  to  B.,  in  consideration 
of  X300  then  paid  "  by  way  of  deposit  and  in  part  of  c£5,500,"  the 
whole  purchase-money ;  possession  to  be  delivered  and  accepted 
on  a  day  named ;  and  B.  agreed  to  accept  such  demise,  but,  on  the 
day,  refused  to  accept ;  and  A.  afterwards  disposed  of  the  house 
to  a  third  party :  it  was  doubted  whether,  upon  these  terms  alone, 
the  deposit  should  be  forfeited,  or  whether  B.  could  recover  the 

1  Savile  v.  Savile,  1  P.  Wms.  745,  747.        2  jcely  v.  Grew,  6  N.  &  M.  467-471. 


538  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

deposit  from  A.  But  it  was  held,  that  the  intention  might  be  col- 
lected from  other  parts  of  the  agreement.  Hence,  as  a  distinct 
clause  provided  that  eitlier  party  making  default  should  forfeit 
£1,000,  it  was  held  that  the  deposit  was  not  to  be  forfeited,  and 
might  be  recovered  back.  But  not  before  A.  disposed  of  the 
house.  And  an  action  for  the  deposit,  brought  after  the  day 
named  in  the  agreement,  but  before  A.  had  disposed  of  the  house, 
having  failed,  was  held  no  estoppel  to  an  action  brought  after  A. 
had  disposed  of  the  house.  And  it  was  held  that  the  facts  nega- 
tived a  plea,  that  the  causes  of  the  two  actions  were  identical. 
Lord  Denman,  C.J.,  says,  "  The  question,  whetlier  tlie  deposit  is 
forfeited,  depends  on  the  intent  of  the  parties  to  be  collected  from 
the  whole  instrument ;  but,  as  this  imposes  on  either  party  that 
should  make  default  a  penalty  of  X1,000,  the  intent  of  the  parties 
is  clear  that  there  should  be  no  other  remedy.  This  vendor  may 
sue  for  the  penalty,  and  recover  such  damages  as  a  jury  may 
award ;  'but  he  cannot  retain  the  deposit ;  for  that  must  be  con- 
sidered, not  as  an  earnest  to  be  forfeited,  but  as  part-payment. 
But  the  very  idea  of  payment  falls  to  the  ground  when  both  have 
treated  tlie  bargain  as  at  an  end  ;  and  from  that  moment  the  ven- 
dor holds  the  money  advanced  to  the  use  of  the  purchaser."  ^ 

9.  A  bond  with  penalty  may  be  enforced  by  a  bill  in  equity  for 
specific  performance.  Tlius,  in  case  of  a  bill  for  specific  perform- 
ance, it  appeared  that  the  defendant,  upon  the  marriage  of  his 
daughter  with  the  plaintiff,  entered  into  a  bond  with  a  penalty  of 
£5,000,  to  settle  one-third  of  whatever  estate  in  lands  should 
come  to  him  on  the  death  of  his  father.  Tlie  father  died,  and  a 
considerable  estate  descended  to  the  defendant,  but  he  failed  to 
make  the  settlement  within  the  time  limited.  The  defendant  by 
his  answer  insists,  that  he  ought  to  be  left  to  sue  the  penalty, 
having  his  remedy  upon  that  at  law ;  but  the  Lord  Chancellor 
decreed  a  specific  performance,  saying  it  was  unreasonable  to  give 
an  election  to  the  defendant,  when  the  plaintiff  could  have  none ; 
for  if  the  lands  to  be  settled  were  not  of  the  value  of  £5,000,  he 
could  never  resort  to  the  penalty ;  and,  on  the  other  hand,  if  they 
exceeded  that  value,  it  was  not  just  he  should  be  left  to  it ;  neitlier 
would  it  answer  the  intent  of  the  parties,  which  was  to  secure  a 
provision  to  the  wife  and  children  by  the  settlement  of  the  estate ; 

1  Palmer  v.  Temple,  9  Ad.  &  Ell.  508. 


CHAP.    XXXV.]     LIQUIDATED   DAMAGES    AND    PENALTIES. 


539 


because  if  the  plaintiff  was  to  have  the  penalty,  it  must  be  as  a 
debt  due  to  himself,  and  this  Court  would  have  no  power  to  com- 
pel him  to  do  any  thing  out  of  it  for  their  benefit. ^(a) 

10.  In  the  nature  of  liquidated   damages,  is   the   agreement, 

1  Hopson  V.  Trevor,  1  Str.  533;  2  P.  Wins.  191. 


{a)  The  followin<T  instructive  view  of 
the  hiw  relating  to  Hquithiteil  (himages  is 
given  by  Mr.  Greenleaf  in   liis   valuable 
work  upon  P^vidence.     "  In  cases  of  con- 
tract, if  the  parties  themselves  have  liqui- 
dated the  damages,  the  jury  are  bound  to 
find    tlie     amount    tlms    agreed.       But 
whether  the  sum,  stipulated  to  be  paid 
iipon  breach  of  the  agreement,  is  to  be 
taken  as  liquidated  damages,  or  only  as  a 
penalty,  will  depend  upon  the  intent  of 
the  parties,  to  be  ascertained  by  a  just 
interpretation  of  the  contract.     And  here 
it  is  to  be  observed,  that  the  policy  of  the 
law  does  not  regard  penalties  or  forfeitures 
with    favor ;    and    that    equity    relieves 
against  them.      And  therefore,   because, 
by  treating  the  sum  as  a  mere   penalty, 
the  case  is  open  to  relief  in  equity,  ac- 
cording to  the  actual  damages,  the  sum 
will  generally  be  so  considered ;  and  the 
burden  of  proof  will  be  on  him  who  claims 
it  as  liquidated  damages,  to  show  that  it 
was   intended   as    such    by    the    parties. 
This  intent  is  to  be  ascertained  from  the 
whole  tenor  and  subject  of  the  agreement ; 
the   mere   use   of    the    words    '  penalty,' 
'  forfeiture,'     or     '  liquidated     damages,' 
not  being  regarded  as  at  all  decisive   of 
the  question,  if  the  instrument  discloses, 
upon  the  whole,  a  different  intent.     Tiie 
cases,  in  which  the  sum  has  been  treated 
as  a  penalty  will  be  found  to  arrange  them- 
selves into  five  classes,  furnishing  certain 
rules  by  which  the  intention  of  the  parties 
is  ascertained:    1.  Where  the  parties,  in 
the  agreement,  have  expressly  declared  the 
sum  to  be  intended  as  a  forfeiture  or  a 
penalty,  and  no  other  intent  is  to  be  col- 
lected from  the  instrument.  2.  Where  it 
is  doubtful  whether  it  was  intended  as  a 
penalty  or  not ;  and  a  certain  damage,  or 
debt,    less    than    the    penalty,   is    made 
payable,  on  the  face  of  the  instrument. 
3.  Where  the  agreement  was   evidently 
made  for  the  attainment  of  another  object, 
to  which  the  sum  specified  is  wholly  col- 
lateral.      This    rule    has    been    applied, 
where  the  principal  agreement  was,  not 
to  trade  on  a  certain  coast;    to  let  the 
plaintiff  have  the  use  of  a  certain  building; 
or   of   certain   rooms ;    and,    not   to    sell 
brandy,  within  certain  limits  ;  but  the  dif- 
ference  between   these   and   some   other 
cases,  which  have  been  regarded  as  liqui- 


dated damages,  is  not  very  clear.  4. 
Where  the  agreement  contains  several 
matters  of  different  degrees  of  importance,  and 
yet  the  sum  named  is  payable  for  the 
breach  of  any,  even  the  least.  Thus, 
where  the  agreement  was,  to  play  at 
Covent  Garden,  and  to  conform  to  (dl  the 
rules  of  the  establishment,  and  to  j)ay 
.£1,000  for  any  breach  of  them,  as  liquidat- 
ed damages,  and  not  as  a  penalty,  it  was 
still  held  as  a  penalty  only.  5.  Where  the 
contract  is  not  under  seal,  and  the  damages 
are  capable  of  being  certainly  known  and 
estimated ;  and  this  though  the  parties 
have  expressly  declared  the  sum  to  be  as 
liquidated  damages. 

"  On  the  other  hand,  it  will  be  inferred, 
that  the  parties  intended  the  sum  as 
lifjuidated  damages :  1.  Where  the  damages 
are  uncertain,  and  are  7iot  cap(d)le  of  being 
ascertained  by  any  satisfactory  and  known 
rule,  whether  the  uncertainty  lies  in  the 
nature  of  the  subject  itself,  or  in  the  par- 
ticular circumstances  of  the  case.  This 
rule  has  been  applied,  where  the  agree- 
ment was,  to  pay  a  certain  sum  tor  each 
week's  neglect  to  repair  a  building ;  for 
each  year's  neglect  to  remove  a  lime-kiln ; 
for  not  marrying  the  plaintiff;  for  running 
a  stage  on  a  certain  road,  in  violation  of 
contract ;  for  breach  of  a  contract  not  to 
trade,  or  practice,  within  certain  limits ; 
and  for  not  resigning  an  office,  agreeably 
to  a  previous  stipulation.  2.  Where,  from 
the  nature  of  the  case,  and  the  tenor  of 
the  agreement,  it  is  apparent,  that  the 
damages  have  already  been  the  subject  of 
actual  and  fair  calculation  and  adjustment 
between  the  parties.  Of  this  sort  are 
agreements  to  pay  an  additional  rent  for 
every  acre  of  land,  which  the  lessee 
should  plough  up ;  not  to  jiermit  a  stone 
weir  to  be  enlarged,  '  under  the  i)enalty 
of  double  the  yearly  rent,  to  be  recovered 
by  distress  or  otherwise  ;  '  to  convey 
land,  or,  instead  thereof,  to  pay  a  certain 
sum ;  to  pay  a  higher  rent,  if  the  lessee 
should  cease  to  reside  on  the  iiremises ; 
that  a  security  should  becoine  void,  if  i)ut 
in  suit  before  the  time  limiteil  in  a  letter 
of  license  granted  to  the  debtor ;  and,  to 
pay  a  sum  of  money,  in  goods,  at  an 
agreed  price."  2  Greenl.  Ev.  §§  2o7- 
25y. 


540  LAW  OF  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

sometimes  made,  that  the  amount  of  damages  shall  be  determined 
by  arbitration. 

11.  Upon  this  point  it  has  been  held,  that,  where  one  promises 
to  convey  land  for  the  sum  at  which  it  shall  be  appraised  by  three 
men ;  it  is  not  necessary  that  they  should  be  unanimous  in  their 
appraisement,  in  order  to  bind  him.  Dewey,  J.,  says,  "  This 
would  constitute  a  valid  objection  to  an  action  on  an  award 
founded  on  a  submission  at  common  law,  there  being  no  stipulation 
that  a  majority  should  decide.  The  question  arises  here,  however, 
imder  different  circumstances ;  the  plaintiff"  founding  his  cause  of 
action  on  the  promise  of  the  defendant  to  convey  to  him  the  land. 
In  a  case  like  the  present,  if  it  appears  that  the  plaintiff  has  done 
all  in  his  power  to  procure  an  award  fixing  the  amount  to  be  paid 
by  him,  in  pursuance  of  the  terms  of  the  contract,  we  do  not  think 
that  the  act  of  any  one  of  the  persons  thus  selected  as  arbitrators, 
in  refusing  to  concur  with  his  associates  in  fixing  the  sum  to  be 
paid,  should  operate  to  divest  the  rights  of  the  plaintiff  arising 
under  this  contract.  If  the  sum  to  be  paid  by  the  plaintiff,  before 
he  was  entitled  to  the  conveyance,  could  not  be  adjusted  in  the 
manner  contemplated  by  the  parties,  and  this  state  of  things 
occurred  without  the  fault  of  the  plaintiff,  the  effect  must  be,  that 
he  must  pay  for  the  land  such  a  sum  as  was  reasonable,  and  such 
sum  as  the  arbitrators  ought  to  have  awarded.  The  defendant 
has  refused,  on  his  part,  to  make  the  conveyance  to  the  plaintiff 
which  he  stipulated  to  make,  and  has  therefore  rendered  himself 
liable  in  damages  to  the  plaintiff."  ^ 

12.  In  case  of  an  agreement  between  vendor  and  purchaser  of  a 
copyhold  estate,  for  themselves  and  their  representatives,  to  fulfil 
the  contract  and  to  refer  the  question  of  value ;  one  of  the  parties 
dying,  the  representatives  cannot  annul  the  decision  of  the  referee, 
by  showing  an  error  in  his  estimate,  or  compel  the  acceptance  of 
the  penalty,  under  which  the  agreement  was  secured,  in  satisfac- 
tion of  their  breach  of  contract.  Strange,  M.R.,  says,  "  Whatever 
be  the  real  value  is  not  now  to  be  considered,  for  the  parties  made 
Harris  the  judge  on  that  point ;  they  thought  proper  to  confide  in 
his  judgment,  and  must  abide  by  it,  unless  they  could  have  made 
it  plainly  appear  that  he  had  been  guilty  of  some  gross  fraud  or 
partiality.     It  is  like  the  case  of  a  submission  to  arbitrators,  whose 

1  Phippen  v.  Stickney,  3  Met.  384,  389,  390. 


CHAP.    XXXV.]     LIQUIDATED    DAMAGES   AND    PENALTIES.  541 

award  will  never  be  set  aside  but  on  the  plainest  proof  of  fraud  or 
partiality.  The  defendants  object  that  they  were  not  privy  to, 
nor  had  any  notice  of  the  adjudication.  Had  Mr.  Harris  pro- 
ceeded ex  parte,  and  consulted  with  or  heard  the  plaintiff  on  that 
head,  there  might  have  been  some  weight  in  this  objection ;  but  it 
does  not  appear  he  consulted  either  party,  nor  was  it  necessary  he 
siiould.  The  difference  of  the  valuations  of  this  estate  can  never 
be  a  reason  for  the  Court  to  set  aside  the  adjudication,  for  that  is 
the  very  point  submitted  to  Mr.  Harris's  judgment ;  and,  were  the 
Court  to  set  aside  awards,  where  no  improper  partiality,  or  collu- 
sion appeared,  merely  on  the  merits  of  the  case,  awards  would 
answer  no  end,  for  those  very  disputes  they  are  designed  to  pre- 
vent. It  is  very  well  known,  that  a  party  may  come  here  for  a 
specific  performance  of  an  agreement,  notwithstanding  the  inser- 
tion of  a  penalty  in  it."  ^  So,  under  an  act  incorporating  a  com- 
pany for  the  erection  of  a  market,  and  authorizing  them  to  pur- 
chase certain  scheduled  hereditaments,  and  to  give  notice  to  parties 
interested  to  send  in  their  claims,  and  directing  that,  in  case  of 
non-acceptance  of  the  terms  offered  by  the  company,  the  value 
shall  be  assessed  in  a  certain  mode  ;  the  company  cannot,  after 
giving  the  notice,  abandon  the  purchase ;  and,  in  such  a  case,  the 
Court  granted  a  mandamus  for  the  issuing  of  the  statutory  process 
to  assess  the  value.^(a) 

13.  Another  question  has  arisen,  in  connection  with  the  agree- 
ment to  settle  damages  by  arbitration  ;  namely,  as  to  the  interfer- 
ence of  a  Court  of  Equity  in  decreeing  specific  performance.  In  case 
of  a  proviso  in  articles  for  purchase,  that,  if  either  should  l»reak  the 
agreement,  he  should  pay  XlOO  to  the  other;  the  defendant,  on 
being  offered  two  years'  purchase  more,  having  accepted  it,  Lord 

1  Belchier  v.  Reynolds,  2  Ld.  Keny.         ^  The  King  v.  Hungerford,  &c.  1  Nev. 
2d  part,  87,  91  ;   ace.  Wilson  v.   Getty,     &  Mann.  112. 
Leg.  Intel.  Sept.  1868. 

[a)  Tlie  particulars  of  an  auction  sale  the  reference  provided  for  was  not  a  refer- 

of  premises  belonging  to  the  defendant,  ence  of  an  existing  or  future  difference 

stated  them  as  let  at  a  rental  of  £30  per  within  the  meaning  of  the  Common  Law 

annum,  and  contained  a  condition  that,  in  Procedure  Act,  1854,  §  11,  but  only  a  ques- 

case  of  any  mistake  of  description  in  the  tion  of  the  amount  of  compensation  ;  and 

particulars,  this  should  not  avoid  the  sale,  the  plaintiffs   could  not  lawfull}-  appoint 

but  a  compensation  should  be  given,  to  be  their  referee  to  be  sole  arbitrator,  although 

determined  by  two  referees,  one  appointed  the   defendants,  after   notice,  themselves 

by  each  party,  or  an  umpire.     The  plain-  failed  to  make  an  appointment.     Bos  v. 

tiffs,  having  purchased  the  property,  dis-  Helsham,  Law    Hep.    (Eng.J    Jan.    1867, 

covered  an  error  in  the  rental.     Held,  a  p.  71. 
proper  subject  of  compensation  ;  but  that 


542  LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

Hardwicke  decreed  a  specific  performance  of  the  articles.^     But 
equity  will  not  interfere  to  compel  specific  performance,  unless  it 
can   itself  execute  the  whole  contract,  in  the  terms  specifically 
agreed  upon.     Accordingly,  where  a  bill  prayed  specific  perform- 
ance of  a  contract,  one  term  of  which  was  to  the  effect,  that,  if  any 
damage  should  result  to  the   defendant  from  certain  works,  the 
erection  of  which  had  been  agreed  upon  between  the  parties,  the 
plaintiff  would  give  to  the  defendant  an  equivalent  in  land,  the 
amount  of  damage  and  the  quantity  of  land  to  be  ascertained  by 
certain  arbitrators  ;  held,  the  Court  had  not  jurisdiction  to  grant 
such  relief;  and  the  execution  of  a  deed,  containing  covenants  for 
the  performance  of  that  part  of  the  contract  which  lay  in  fieri, 
would  not  be  a  specific  performance.     Lord  Chancellor  Sugden 
says,  "  The  Court  acts  only  when  it  can  perform  the  very  thing,  in 
the  terms  specifically  agreed  upon  ;  but  when  we  come  to  the  exe- 
cution of  a  contract  depending  upon  many  particulars,  and  upon 
uncertain  events,  the  Court  must  see  whether  it  can  be  specifically 
executed ;    nothing    can    be   left    to    depend   upon   chance ;    the 
Court  must  itself  execute  the  whole  contract.     There  are  cases 
where  some  of  the  acts  to  be  done,  consequent  on  the  specific  exe- 
cution of  the  contract,  may  be  performed  subsequently.     Thus  a 
contract  for  sale  of  timber  can  be  specifically  executed,  although 
the  timber  is  to  be  cut  down  at  a  future  time,  or  at  intervals,  and 
the  money  to  be  paid  by  instalments.    It  is  a  certain  contract,  and 
the  manner  of  dealing  with  the  thing  sold,  by  future  cuttings,  is  no 
objection  to  a  specific  performance.     The  one  man  sells  the  timber, 
and  the  other  pays  for  it  the  price  contracted  for.     Here  part  of 
this  contract  is  at  once  capable  of  a  specific  execution  ;  this  admits 
of  no  doubt.     But  then,  by  the  rule  of  the  Court,  if  I  am  called 
upon  to  execute  the  contract,  I  must  myself  specifically  execute 
every  portion  of  it ;  1  cannot  give  a  partial  execution  of  the  con- 
tract.    If  a  man  agree  to  do  a  certain  act,  for  example  to  dispose 
of  an  estate,  with  a  covenant  for  something  to  be  done  hereafter, 
the  Court  can  carry  such  a  contract  into  specific  execution.     The 
decree  would  give  all  that  is  presently  contracted  for,  the  immedi- 
ate transfer  of  the  estate  itself,  and  compel  the  party  to  enter  into 
the  covenant  to  do  the  particular  thing.     But  here,  there  is  an 
entire  contract,  which  must  be  executed.     Certain  things  were  to 

1  Howard  v.  Hopkyns,  2  Atk.  371. 


CHAP.   XXXV.]     LIQUIDATED   DAMAGES   AND   PENALTIES.  543 

be  done  at  once,  and  certain  other  things  were  dependent  upon 
future  contingencies.  The  plaintiff  has  waived  liis  right,  as  far  as 
he  could.  But  by  another  clause  it  is  provided,  that  if  any  damages 
should  arise  to  the  lands  of  Mr.  Edwards,  from  the  erection  of  the 
dam,  the  plaintiff  should  give  an  equivalent  in  land,  as  a  compen- 
sation for  such  damage  ;  which  damage  the  arbitrators  were  to  fix 
at  the  time  of  adjusting  the  other  matters,  and  also  lay  off  the 
quantity  of  land  to  be  given  in  lieu  of  such  damage.  It  is  said, 
that  this  operates  either  in  prcesenti,  and  has  been  executed  by  the 
award,  or  that  the  agreement,  in  this  respect,  might  form  a  part  of 
the  deed.  I  am  clearly  of  opinion,  that  this  is  not  a  matter  to  be 
presently  ascertained,  but  is  dependent  upon  the  operation  of 
works  contracted  to  be  erected,  and  can  only  be  ascertained,  after 
the  works  have  been  in  operation.  The  provision  was  to  guard 
against  the  probable  chance  of  future  damage  to  the  defendant's 
land ;  no  evidence  has  been  read,  to  show  that  it  formed  any  part 
of  the  award,  or  that  the  arbitrators  took  it  into  their  consideration, 
and  the  language  of  the  award  does  not  imply  that  they  did.  Well 
then,  it  is  a  prospective  measure,  and  what  is  the  decree  to  be  ? 
It  cannot  be  made  the  subject  of  covenant ;  that  is  not  the  agree- 
ment of  parties.  Am  I  to  decree  the  specific  performance  of  that 
which  is  now  capable  of  being  executed  ?  and  then  (for  I  must  go 
on)  am  I  to  decree,  that  if  hereafter,  when  the  works  not  now  com- 
menced are  completed,  damage  should  arise  to  the  defendant's 
land,  the  arbitrators  shall  ascertain  the  damage,  and  the  plaintiff 
shall  convey  land  equivalent  in  value  to  such  damage  ?  No  one 
ever  heard  of  such  a  decree.  It  is  impossible  to  execute  this  con- 
tract specifically."  ^ 

14.  In  this  connection  we  may  also  refer  to  some  other  points, 
upon  which  a  Court  of  Equity  has  been  called  upon  to  interfere 
with  the  question  of  damages. 

15.  Under  a  bill  by  a  vendee  to  have  the  contract  delivered  up, 
on  the  ground  of  defective  title  in  the  vendor,  and  for  compensa- 
tion, a  decree  was  made  for  delivering  up  the  contract,  without 
prejudice  to  an  action,  instead  of  an  inquiry  before  the  Master.^ 
So  it  is  held,  that  the  plaintiff  in  a  bill  for  specific  performance  is 
not  entitled,  generally,  to  damages  for  non-performance,  to  be  ascer- 
tained by  an  issue  or  a  reference  to  the  Master ;  although  a  dis- 

1  Gervais   v.  Edwards,  2  Dru.  &  W.         '^  Gwillim  v.  Stone,  U  Ves.  128. 
80,  82. 


544  LAW  OP  VENDORS  AND  PURCHASERS.   [CHAP.  XXXV. 

tinction  was  made  as  to  cases  of  compensation,  as  for  a  part  subject 
to  tithes,  though  represented  tithe-free ;  giving  the  purchaser,  if 
he  chooses  to  take  the  purchase,  a  right  to  compensation,  but  not  to 
compel  the  vendor  to  purchase  the  tithes.  Lord  Eldon  says,  "  The 
case  is  very  different  from  giving  compensation  out  of  the  pur- 
chase-money. My  opinion  is,  that  this  Court  ought  not,  except 
under  very  particular  circumstances,  as  there  may  be  upon  a  bill 
for  the  specific  performance  of  a  contract  to  direct  an  issue,  or  a 
reference  to  the  Master,  to  ascertain  the  damages.  That  is  purely 
at  law.  It  has  no  resemblance  to  compensation.  Where,  for  in- 
stance, an  estate  was  held  with  an  engagement  that  a  certain  num- 
ber of  acres  are  tithe-free,  which  is  not  the  case,  and  the  vendee 
contracts  to  sell  to  another  person  with  a  similar  engagement,  this 
Court  would  give  compensation  for  so  much  as  was  not  tithe-free ; 
but  would  not  give  compensation  for  the  damage  sustained  by  not 
being  able  to  complete  the  subsequent  contract,  which  might  fairly 
be  offered  to  the  consideration  of  a  jury.  About  the  time  when 
Denton  v.  Stewart  occurred,  some  degree  of  irritation  was  excited 
in  the  court  by  persons  called  land-jobbers,  contracting  for  estates 
without  any  intention  of  paying  for  them,  and  setting  up  defects 
of  title,  merely  with  the  view  of  gaining  time  to  dispose  of  them  ; 
and  on  that  ground  Lord  Rosslyn  was  prevailed  upon  to  direct  a 
reference  of  the  title  immediately  on  motion  ;  and  there  is  not 
much  mischief  in  that  upon  a  simple  case  of  specific  performance, 
where  there  is  nothing  more  ;  but  the  relief  may  be  so  modified  and 
qualified,  with  reference  to  the  nature  and  object  of  the  contract, 
that,  unless  it  is  purely  that  point,  great  difficulty  may  arise." 
The  Lord  Chancellor  proceeds  to  remark  upon  a  leading  case,  re- 
lied upon  as  sustaining  a  different  doctrine :  "  In  Denton  v.  Stew- 
art, the  defendant  had  it  in  his  power  to  perform  the  agreement, 
and  put  it  out  of  his  power  pending  the  suit.  The  case,  if  it  is 
not  to  be  supported  upon  that  distinction,  is  not  according  to  the 
principles  of  the  Court."  ^ 

16.  So,  in  a  later  case,  an  attorney,  falsely  representing  himself 
to  be  authorized  by  the  owners,  entered  into  an  agreement  on  their 
behalf  to  sell  a  house  to  the  plaintiff,  and  received  a  deposit.  The 
plaintiff  filed  a  bill  against  the  owners  and  the  attorney,  praying 
a  specific  performance,  and  in  the  alternative,  that,  if  the  agree- 

1  Todd  V.  Gee,  17  Ves.  273,  276.     See  Greenaway  v.  Adams,  12  Ves.  395. 


CHAP.    XXXV.]     LIQUIDATED    DAMAGES   AND    PENALTIES.  545 

ment  could  not  be  enforced  against  the  owners,  then  tlie  attorney 
might  repay  the  deposit  and  the  costs  incurred  by  the  plaintiff  and 
the  costs  of  the  suit.  Held,  the  remedy  of  the  plaintilT  tiuainst  the 
attorney,  being  altogether  at  law,  could  not  be  had  in  this  suit,  and 
the  bill  was  dismissed  with  costs.  Lord  Langdale,  M.R.,  says, 
"  The  question  is,  whether  where  a  party,  having  no  sufficient 
autliority,  enters  into  an  agreement,  the  disappointed  purchaser 
can  come  here  for  the  recovery  of  damages  which  he  has  been  put 
to  ?  No  authority  was  produced,  and  I  believe  that  none  exists, 
for  such  an  interposition  by  this  Court.  Judges  have  always  in 
modern  times  thought,  that  this  was  not  the  court  for  recovery 
of  damages,  and  that  the  proper  mode  of  obtaining  relief  was  by 
an  action  at  law  ;  and  it  is  reasonable  that  it  should  be  so."  ^ 

17.  In  deciding  between  the  remedies  of  specific  pe7-fo7'77ia7ice  and 
damages,  it  has  been  held  that  specific  execution  of  an  agreement 
will  be  decreed,  where  damages  would  not  answer  the  intention  in 
making  the  contract,  and  a  specific  performance  is  therefore  essen- 
tial to  justice.  But  equity  will  not  decree  specific  performance  of 
a  covenant,  Avhere,  from  circumstances,  it  is  become  unconscien- 
tious strictly  to  enforce  performance ;  except  on  the  terms  of  the 
plaintiflf's  submitting  to  a  conscientious  modification  of  the  cove- 
nant; in  which  case  such  modified  performance  will  be  decreed, 
especially  where  the  conduct  of  both  parties  for  a  great  length  of 
time  has  caused  the  covenant  to  be  so  acted  upon,  as  to  make  it 
unconscionable  to  refuse  a  specific  performance,  (a)  It  is  said  by 
the  Court,  "  The  cases  in  which  a  Court  of  Equity  decrees  specific 
performance  of  contracts,  are  generally  cases  in  which  damages 
(which  might  be  recovered  at  law)  would  not  answer  the  intention 
of  the  parties  in  making  the  contract,  and  a  specific  performance, 
as  far  as  the  contract  can  be  performed,  is  therefore  essential  to 
justice.  A  Court  of  Equity  frequently  decrees  specific  perform- 
ance, where  the  action  at  law  has  been  lost  by  the  default  of  the 

1  Sainsbury  v.  Jones,  2  Beav.  462,  4G5. 

.  (a)  In   the   following   case,    relief   in  rectcd  the  Master  to  inquire  what  damages 

equity  was  granted,  by  way  of  damages,  the  plaintiff  had  sustained  by  nDn-jierform- 

upon  much  less  restrictive  princijjles  than  ance   of  the   agreement,   and    that    such 

those  stated  in  the  text.     On  a  bill  for  damages,  together  with  costs,  should  be 

specific  performance  of  an  agreement  for  paid  by  the  defendant.   Denton  v.  Stewart, 

the  sale  of  a  house,  the  plaintiff'  made  out  1  Cox,  258. 

his  case  ;  but,  it  appearing  that  the  de-  This  case,  however,  has  been  virtually 

fendant   liad   actually  sold  the  house  to  overruled   in   Gwillim  v.  Stone,  14   Ves. 

another  person,  for  a  valuable  considera-  128 ;  and  Jenkins  v.  Parkinson,  2  M.  & 

tion,  and  without  notice ;  the   Court  di-  K.  5. 

35 


546  LAW    OF   VENDORS   AND    PURCHASERS.      [CHAP.    XXXV. 

very  party  seeking  the  specific  performance,  if  it  be,  notwithstand- 
ing, conscientious  that  the  agreement  should  be  performed,  as  in 
cases  where  the  terms  of  the  agreement  have  not  been  strictly  per- 
formed on  the  part  of  the  person  seeking  specific  performance, 
and,  to  sustain  an  action  at  law,  performance  must  be  averred 
according  to  the  very  terms  of  the  contract.  The  Court  ought 
not,  I  think,  to  give  specific  performance  according  to  the  letter 
of  the  covenant,  for  that  would  be  unconscientious  against  the 
defendant,  in  consequence  of  the  change  of  circumstances.  But 
because  the  plaintiffs  ought  not  to  have  the  covenant  performed 
literally,  they  are  not  to  lose  their  property  entirely.  The  Court 
will  execute  the  covenant  according  to  a  conscientious  modification 
of  it,  to  do  justice  as  far  as  circumstances  will  permit."  ^ 

18.  After  a  decree  for  specific  performance,  the  defendant  can- 
not proceed  by  action  at  law  on  the  contract  for  damages.^  The 
Vice-Chancellor  says,  "  My  decree  proceeds  upon  the  ground  that 
the  defendant  had  dispensed  with  the  time  stated  in  the  contract. 
If  the  plaintiff  in  equity  had  before  the  decree  applied  for  an  in- 
junction to  restrain  the  defendant  from  proceeding  in  an  action  at 
law  to  recover  damages,  I  should,  upon  the  same  principle,  have 
then  granted  the  injunction  ;  and  a  fortiori,  I  must  grant  it  now. 
Tine  proceeding  at  law  is  inconsistent  with  the  decree  in  equity." 

19.  But  a  remedy  was  granted  by  supplemental  bill,  after  a 
decree  for  specific  performance,  for  the  damages  occasioned  to 
the  plaintiff  by  the  abstraction  by  the  defendant,  pendente  lite,  of 
part  of  the  subject-matter  of  the  suit,  being  stone  in  a  quarry .^ 

1  Davis  V.  Hone,  2  Scho.  &  Lef.  341,  748. 

2  Reynolds  v.  Nelson,  Madd.  &  Geld.  290 ;  6  Madd.  18.     See  p.  432. 

3  Nelson  v.  Bridges,  2  Beav.  239. 


CHAP.    XXXVI.]  COSTS.  547 


CHAPTER    XXXYI. 


COSTS. 

1.  Having  considered  the  suliject  of  damages,  to  be  recovered 
either  by  the  vendor  or  vendee  of  real  property,  we  proceed  to 
inquire  as  to  the  costs  of  suits  brought  by  these  respective  parties, 
tlie  one  against  the  other.  The  question  arises  ahiiost  exclusively 
in  Courts  of  Equity,  where  costs  are  within  the  discretion  of  the 
Court,  and  not,  as  for  the  most  part  at  law,  absolutely  dependent 
upon  the  result  of  the  suit.  Thus  it  is  held,  that  costs  in  equity 
are  in  the  discretion  of  the  Court,  upon  the  circumstances ;  not 
following  the  event  by  a  positive  rule,  as  at  law,  though  primd 
facie  that  is  the  course,  and  the  opposing  circumstances  must  be 
brought  forward  by  the  party  who  fails.  The  answer  will  be  con- 
sidered in  settling  the  question  of  costs. ^(a) 

2.  We  have  already  considered  (chaps.  12,  et  seq.^  the  nature 
and  extent  of  the  vendor's  obligation  to  make  a  good  title,  and  the 
right  of  the  vendee  to  object  to  a  title,  as  being  merely  doubtful. (b^ 

1  Vancouver  v.  Bliss,  11  Ves.  458. 

(a)  Upon  this  subject  Lord  Eldon  re-  costs,  it  is  new  to  mo.  I  tliink,  in  such  a 
marks  (11  Ves.  461),  "It  would  be  a  suit,  he  who  fails  is /'r/mayj/c/e  to  be  taken 
most  satisfactory  doctrine,  if  I  was  at  to  be  the  person  liable  to  costs,  upon  prin- 
liberty  to  say,  that  in  any  species  of  suit  ciples  both  of  morality  and  justice;  and 
the  rule,  that  prevails  universally  at  law,  those  parties  who  depend  upon  circuui- 
that  the  costs  shall  abide  the  event,  was  stances  to  govern  the  discretion  of  the 
established  in  equity ;  for  frequently  the  Court  in  withholding  the  costs,  have  it 
most  painful  and  anxious  duty  of  a  judge  imposed  upon  them  to  show  the  existence 
in  this  court  is  to  execute  well  the  judg-  of  those  circumstances  in  a  sufficient  de- 
ment as  to  costs;  depending  more  upon  gree  to  cut  down  the  primd Jacie  claim  of 
discretion  than  the  merits  ;  with  reference  costs." 

to  which  the  rules  of  law  and  the  prin-  (/<)  In  Marlow  r.  Smith,  2  P.  Wms.  201, 
ciples  of  equity  guide  you  with  much  tiie  Master  of  tlie  Rolls  says,  "  There  be- 
more  certainty.  But  that  has  not  been  so  ing  the  opinion  of  learned  men  against  the 
decided  in  equity,  and  I  should  be  sorry  title,  I  will  not,  nor  do  I  think  it  reason- 
to  see  the  rule  of  this  court  altered  ;  from  aljle  that  a  Court  of  Kquity  should  compel 
the  circumstance  of  making  persons  an-  the  pm-chaser  to  accept  the  purchase." 
swer  large  sums  in  costs,  where  the  de-  But  in  Vancouver  r.  Bliss,  11  Ves.  4G4, 
mand,  which  is  the  object  of  the  suit,  is  Lord  Eldon  expresses  the  following  views 
very  small.  As  to  the  question  of  costs  upon  the  same  subject :  "  In  the  case  of 
upon  a  suit  in  equity  for  tlie  specific  per-  Shapland  r.  Sniitii,  1  Bro.  75,  the  single 
formance  of  an  agreement,  if  there  is  any  question  was,  whether  there  was  a  use  ex- 
rule,  that  the  person  who  fails  shall  pay  ecuted  or  not ;  and  the  case  sunk  down 


548  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.   XXXVI. 

In  the  present  connection  it  may  be  added,  npon  the  same  subject, 
that  a  party  will  not  be  charged  with  expenses  arising  from  objec- 
tions made  to  a  doubtful  title.  Thus  it  is  held,  that  a  purchaser 
brought  into  court  upon  a  doubtful  title  ought  to  be  discharged, 
with  costs.  Lord  Redesdale  says,  "  It  is  sufficient,  on  the  ques- 
tion now  before  the  House,  if  the  law  be  doubtful.  A  purchaser 
has  a  right  to  require  a  marketable  title  ;  and  this  title,  it  must  be 
admitted,  rests  on  a  point  of  law  which  at  least  is  doubtful.  This 
being  so,  the  purchaser  who  has  been  obliged  to  keep  his  money  in 
readiness,  and  deprived  of  the  opportunity  of  vesting  it  in  another 
purchase,  has  been  hardly  used,  and  is  entitled  to  his  costs."  ^  So, 
in  the  case  of  Sloper  v.  Fish,^  Sir  William  Grant,  M.R.,  says, 
"  It  has  been  said,  that  every  title  is  good  or  bad  ;  and  the  Court 
ought  to  know  nothing  of  a  doubtful  title ;  but  the  Court  has 
adopted  a  different  principle  of  decision.  It  was  not  first  intro- 
duced by  Lord  Thurlow,  but  is  at  least  as  old  as  Sir  Joseph  Jekyll's 
time,  and  was  repeatedly  acted  upon  by  Lord  Hardwicke."  And 
accordingly  a  reconveyance  was  afterwards  directed,  paying  the 
purchaser  all  his  costs. 

3.  If,  after  a  sale,  but  before  the  title  is  accepted,  the  title-deeds 
be  destroyed  by  fire,  equity  will  not  compel  specific  performance, 
unless  the  vendor  can  furnish  the  means  of  showing  their  contents, 
due  execution  and  delivery.  For  want  of  such  proof,  a  vendor's 
bill  was  dismissed,  with  costs.^ 

1  Blosse  V.  Clanmorris,  3  Bligh.  62,  71.  *  Bryant  v.  Busk,  4  Russ.  1.  ] 

2  2  Ves.  &  B.  149. 

into  this  state  ;  that  with  so  much  difii-  The  question  of  costs  lias  been  made 
culty  upon  tlie  title  a  pui'chaser  should  not  to  depend  upon  the  general  fairness  and 
be  compelled  to  take  it.  That  case  has  honesty  of  the  party  from  whom  they  are 
been  followed  since.  What  is  the  conse-  claimed.  Thus,  in  the  case  of  Davis  v. 
quence  ?  It  is  scarcely  possible  to  repre-  Symonds,  1  Cox,  402,  Hotham,  Baron, 
sent  the  difficulties  that  have  arisen  from  says,  "  If  the  parol  evidence  is  once  re- 
it  ;  especially  in  a  period  when  persons  ceived,  tliere  is  an  end  of  the  cause ;  for 
under  the  description  of  land-jobbers,  are  upon  that  it  appears  the  plaintiff  is  not  an 
going  about,  looking  for  these  things  ;  and  honest  man,  and  there  is  consequently 
persons  improvidently  enter  into  contracts  no  reason  for  us  to  interpose  ;  and  if  his 
with  them.  Whenever  a  contract  is  made  conduct  be  such,  he  must  pay  the  costs." 
for  the  purchase  of  land,  thougli  no  doubt  A  vendor  not  making  a  good  title  was 
has  ever  been  entertained  \\\)on  the  title,  ordered  to  pay  costs,  though  he  was  only 
no  one  thinking  of  disputing  it,  if  the  pur-  a  trustee  to  sell.  Edwards  v.  Harvey, 
chaser  has  a  good  bargain,  he  overlooks  Coop.  40. 

all  these  objections ;  but,  if  he  finds  he  Where  a  suit  is  necessary,  to  obtain 

cannot  sell  the  estate  as  well  as  he  wished,  the  legal  estate  for  a  purchaser,  which  the 

or  cannot  enjoy  it  to  his  satisfaction,  the  vendor's  contract  binds  him  to  procure ; 

first  thing  is,  that  the  abstract  goes  to  some  the  latter,  in  a  bih  brought  by  him  for 

one  for  tiie  exjiress  purpose  of  finding  out  specific  performance,  is  liable  for  the  costs 

objections,  and  opinions  are  given  on  both  of  such  suit.     Williams  v.  Glenton,  Law 

sides."  Eep.  (Eng.)  Eq.  March,  1866,  p.  207. 


CHAP.    XXXVI.]  COSTS.  549 

4.  In  an  abstract  of  a  veiidor''s  title,  a  will  which  formed  part  of 
it  was  wrongly  represented  as  having  been  proved  in  the  Spiritual 
Court.  The  })urchaser  filed  his  bill,  praying  that  the  defendants 
might  either  be  decreed  to  i)rove  the  will,  or  that  it  might  be  de- 
posited in  the  hands  of  the  Master  for  safe  custody.  The  vendors, 
having  by  their  misrepresentations  occasioned  the  suit,  were 
ordered  to  pay  all  the  costs. ^ 

5.  Upon  a  bill  filed  by  a  vendor  for  specific  performance,  it  ap- 
peared that  he  could  make  a  good  title  before  conmiencement  of 
suit,  but  did  not  show  one  to  the  purchaser  until  afterwards.  Held, 
though  specific  performance  must  be  decreed,  the  purchaser  was 
entitled  to  the  costs  of  the  suit,  generally .^  So  costs  were  allowed 
to  a  purchaser ;  the  vendor  having  established  his  title  before  the 
Master,  after  contest  upon  a  different  ground  from  that  in  the  ab- 
stract delivered.^  So  it  is  held,  that  a  vendor  seeking  specific  per- 
formance should  have  his  title  prepared,  and  therefore,  where  the 
abstract  delivered  is  imperfect,  he  pays  the  costs  up  to  the  time  of 
supplying  the  defects.  The  Master  of  the  Rolls  said,  "  I  cannot 
say  that  the  defendant  in  this  case  has  acted  quite  right,  that  he 
has  not  taken  some  objections  that  he  ought  not ;  but  still  I  should 
feel  great  difficulty  in  fixing  him  with  costs.  A  vendor  who  seeks 
a  specific  performance  should  come  prepared  with  his  title  ;  he 
ought  to  have  it  ready  before  he  carries  his  estate  to  market.  If 
he  will  sell  it  with  a  confused  title,  he  must  be  at  the  expense  of 
clearing  it.  The  plaintiff  here  comes  into  the  office  with  an  abstract 
undoubtedly  imperfect,  for  it  did  not  state  that  part  of  the  land 
was  copyhold;  proceedings  then  follow  at  a  great  expense,  occa- 
sioned by  the  plaintiff's  neglect.  It  gradually  ripens  into  a  better 
title  ;  the  time  that  elapsed  during  the  inquiry  improves  it.  The 
deeds  did  not  on  the  face  of  them  make  out  the  title,  as  they  failed 
to  identify  the  premises.  Affidavits  are  then  filed,  which  were  not 
originally  before  the  Master,  and  which  were  not  before  the  defend- 
ant when  he  first  resisted.  Why  was  not  this  done  before  the 
commencement  of  the  suit,  or  why  was  it  not  provided  for  in  the 
contract  ?  We  cannot  now  characterize  the  objections  first  taken 
as  frivolous,  and  though  they  have  been  removed,  it  was  not  by 

1  Harrison  v.  Coppard,  2  Cox,  318 ;  Sloper  v.  Fish,  2  Vcs.  &  B.  145. 

2  Townsend  v.  Cliampernowne,  3  Y.  &  Coll.  605. 

3  Fielder  v.  Iligginson,  3Ves.  &  B.  142. 


550  LAW    OF   VENDORS    AND    PURCHASERS.    [CHAP.   XXXVI. 

any  thing  that  was  in  the  defendant's  knowledge  at  the  time  he 
put  in  his  answer."  ^ 

6.  Where  a  purchaser  is  ready  to  pay,  hut  the  vendor  refuses  to 
convey,  the  vendor,  upon  a  decree  for  specific  performance,  shall 
be  charged  with  costs.^  So,  if  a  purchaser  attends  at  the  time  and 
place  appointed  for  making  the  conveyance,  and  the  vendor  is  un- 
able to  make  a  good  title,  the  vendor  will  be  chargeable  with  the 
costs  of  a  suit  for  specific  performance  subsequently  commenced 
by  him,  though  he  makes  a  title  at  the  time  of  the  decree.^ 

7.  A  vendor,  on  delivering  the  deed,  promised  to  procure  a  re- 
lease of  dower ;  but  the  release  was  delayed  till  after  the  filing  of 
a  bill  to  enjoin  collection  of  the  purchase-money.  Held,  upon 
dissolution  of  the  injunction,  no  damages  should  be  decreed,  but 
the  purchaser  was  entitled  to  costs.* 

8.  Before  completion  of  a  purchase,  the  purchaser  died  intestate. 
A  bill  was  filed  by  the  vendor  against  the  heir  and  administrator 
of  the  vendee,  praying  for  a  resale,  and  for  the  application  of  the 
purchase-money  to  the  payment  of  the  vendor's  expenses  and  the 
sum  agreed  to  be  paid  by  the  vendee.  Held,  that  the  vendor  was 
bound  to  pay  the  costs  of  the  heir,  with  liberty  to  add  them  to  his 
own.^ 

9.  A  purchaser  demurred  to  a  bill  against  him  for  specific  per- 
formance, and  his  demurrer  was  overruled.  He  then  asked  for  a 
case  to  be  sent  to  a  Court  of  Law,  which  was  granted  ;  and  the 
opinion  of  the  judges  was  also  against  him.  Ultimately,  however, 
the  bill  was  dismissed,  with  costs.  Held,  he  was  entitled  to  his 
costs  at  law,  as  w.ell  as  in  equity.  The  Vice-Chancellor  said  that 
"  neither  party  was  wrong  in  asking  for  the  opinion  of  a  Court  of 
Law  upon  a  mere  question  of  law  ;  and  that  the  costs  of  the  case 
were  part  of  the  costs  of  the  cause,  incurred  with  a  view  to  the 
final  termination  of  the  suit."     Order  appealed  from.^ 

10.  Sale  of  land  to  a  railway  company.  The  vendor  died  before 
any  conveyance,  leaving  an  infant  heir  ;  and  the  company  then  in- 
stituted this  suit,  to  obtain  a  conveyance  from  the  infant.  Held, 
although  the  company  were  bound  by  their  act  to  pay  the  expenses 
of  the  conveyance  of  land  taken  by  them,  yet,  as  the  vendor  had 

1  Wilson  V.  Allen,  1  Jac.  &  Walk.  623.  5  Poppig  v.  Henson,  9  Eng.  Law  &  Eq. 

2  Hart  V.  Brand,  1  A.  K.  Marsh.  159.  215. 

3  Winne  v.  Reynolds,  G  Paige,  407.  6  Forbes  v.  Peacock,  12  Sim.  549. 

4  M'Koy  V.  Chiles,  5  Mon.  259. 


CHAP.    XXXVI.]  COSTS.  551 

occasioned  the  suit  by  sufFering  the  land  to  descend  to  an  infant, 
the  costs  of  the  suit,  and  of  liaving  the  conveyance  settled  by  the 
Master,  must  be  paid  out  of  the  pni-cliasc-moncy.  The  Yice-Chan- 
cellor  said,  "  If  the  defendant's  father,  instead  of  allowing  the 
piece  of  land  to  descend  to  an  infant,  had  taken  only  the  ordinary 
precaution  of  devising  it  either  to  his  executors  or  to  a  trustee  in 
trust  to  convey  it  to  the  plaintiff,  there  would  have  been  no  occa- 
sion for  instituting  this  suit ;  and  as  he  has  created  the  necessity  for 
the  suit,  by  his  own  laches,  the  costs  of  it  must  come  out  of  the 
purchase-money.  The  expense  of  the  actual  conveyance  must  be 
borne  by  the  company ;  but,  if  it  is  necessary  that  it  shou|d  be 
settled  by  the  Master,  the  extra  expense  occasioned  thereby,  as 
well  as  the  costs  of  the  suit,  must  be  paid  out  of  the  purchase- 
money."  ^ 

11.  Questions  have  often  arisen,  as  to  the  liability  of  a  vendee 
for  costs.^  Thus,  in  case  of  a  bill  filed  by  a  vendor  for  specific 
performance  ;  the  purchaser,  having  ineffectually  claimed  that  the 
contract  had  been  abandoned,  was  ordered  to  pay  the  costs  of  the 
suit  up  to  the  hearing ;  and  the  usual  reference  made  as  to  title.^ 
So  specific  performance  was  decreed,  with  costs,  against  a  pur- 
chaser, without  reference  as  to  the  title,  upon  possession,  and  no 
objection  made  to  the  abstract.^  So  upon  possession,  a  coiTes])ond- 
ence,  and  no  objection  to  the  title  till  two  years  after  the  abstract 
was  delivered.^ 

12.  A  purchaser  had  been  eight  years  in  possession,  but  the  ven- 
dor was  unable  to  make  a  good  title,  and  the  purchaser  refused 
either  to  abandon  the  agreement  or  accept  such  title  as  the  vendor 
could  give,  but  paid  no  purchase-money  or  rent.  Tiie  Court,  upon 
a  bill  filed  by  the  vendor  for  relief,  directed  the  agreement  to  be 
delivered  up  to  be  cancelled,  and  the  rents  and  profits  received  by 
the  purchaser  to  be  accounted  for,  and  ordered  the  purchaser  to 
pay  the  costs.*" 

13.  A  sale  was  to  be  void,  if  the  purchaser's  counsel  should  be 
of  opinion  that  a  marketable  title  could  not  be  made  by  a  certain 
time.  The  counsel  being  of  that  opinion,  a  bill  by  the  purchaser 
for  a  specific  performance,  with  a  compensation,  was  dismissed 
with  costs ;  and  an  application  afterwards  made  by  the  plaintiff, 

1  Midland,  &c.  v.  Westconib,  11  Sim.  3  Taylor  v.  Brown,  2  Bcav.  280. 

67,  58.  4  Fleetwood  v.  Green,  15  Ves.  594. 

'^  See     Nicloson     v.    Wordsworth,     2  ^  Margravine,  &.c.  v.  Noel,  1  Madd.  310. 

Swanst.  3G5.  6  King  v.  Iving,  1  My.  &  Kee.  442. 


552  LAW    OF   VENDORS    AND    PURCHASERS.     [CHAP.    XXXVI. 

that  his  deposit  might  be  set  off  against  the  defendant's  costs,  and 
the  surplus  (if  any)  paid  to  him,  was  refused,  with  costs. ^ 

14.  But  although,  in  general,  possession  of  a  vendee  will  have 
weight  in  favor  of  the  vendor  upon  the  question  of  costs,  in  case 
of  a  bill  by  a  vendor  for  a  specific  performance,  the  report  being 
against  the  title,  the  bill  was  dismissed,  with  costs,  upon  the  cir- 
cumstances of  the  case,  the  purchaser  having  taken  possession  at 
the  instance  of  the  vendor,  representing  the  title  to  be  perfect.^ 

15.  Where  the  purchaser  objects  to  specific  performance  upon 
other  grounds  than  those  of  title,  and  fails,  and  the  vendor  does 
not  make  out  his  title  until  after  decree  ;  the  purchaser  is  liable  to 
the  costs  of  the  vendor's  suit  for  specific  performance,  except  the 
costs  of  making  out  the  title.^ 

16.  Wiiere,  on  a  bill  for  exhibition  of  title,  a  deed  is  tendered 
and  finally  accepted,  the  party  having  a  right  to  an  injunction  at 
the  time  of  filing  his  bill  should  pay  only  the  costs  subsequent  to 
such  acceptance.* 

17.  Where  specific  performance  of  a  contract  by  the  ancestor  is 
decreed  against  the  heir,  to  whom  nothing  has  descended  except 
the  property  in  question ;  the  costs  will  be  charged  upon  the 
plaintiff,^ 

18.  Contract  with  a  person,  since  deceased,  for  the  purchase  of 
an  advowson  ;  but  no  steps  were  taken  to  enforce  the  contract  dur- 
ing the  life  of  the  vendor,  or  for  a  considerable  time  after  her 
death,  the  vendee  objecting  to  the  title,  on  the  ground  of  outstand- 
ing judgments,  and  a  creditor's  bill  pending.  Held,  the  vendee  is 
not  entitled,  as  against  a  devisee,  to  present,  if  a  vacancy  occur  in 
the  mean  time,  though  he  has  not  renounced  his  contract,  but  in- 
sists on  having  it  completed.  And  if,  in  consequence  of  his  insist- 
ing on  such  right,  a  bill  becomes  necessary  to  ascertain  the  true 
claim  of  the  next  presentation,  which  is  thereby  put  in  danger  of 
lapse ;  a  decree  in  favor  of  the  plaintiff  will  carry  costs  as  far  as 
his  claim  came  in  question,  although  it  be  part  of  the  decree,  that, 
subject  to  the  next  presentation,  he  be  permitted  to  complete  his 
contract.  Thomson,  C.B.,  says,  "  The  defendant,  having  insisted 
on  his  agreement,  and  having  asserted  in  plain  terms  his  right  of 
presentation,  he  by  so  dohig,  has  rendered  the  present  suit  on  the 

1  "Williams  v.  Edwards,  2  Sim.  78.  *  Noland  v.  Pope,  7  J.  J.  Marsh.  138. 

2  Vancouver  v.  Bliss,  11  Ves.  458.  5  Sutphen  v.  Fowler,  9  Paige,  280. 

3  Abbott  V.  Calton,  19  Eng.  Law  &  Eq. 
601. 


CHAP.    XXXVI.]  COSTS.  553 

part  of  the  plaintiff  necessary,  and  the  Conrt  have  eventually  de- 
creed that  his  claim  was  ill  founded.  Therefore,  as  far  as  relates 
to  the  advowson,  he  ought  to  pay  the  costs."  Graham,  B.,  says, 
"  The  conduct  of  Tucker  must  be  construed  into  a  refusal  to  accept 
the  title,  unless  sanctioned  by  the  decree  of  the  Court ;  and  yet, 
had  he  not  insisted  on  his  claim,  this  suit  would  not  have  been 
necessary."  Richards,  B.,  says,  "  The  contract  is  somewhat  like 
an  agreement  for  the  purchase  of  a  reversion,  in  which  case,  if  the 
purchaser  were  allowed  to  delay  the  completion  of  the  contract,  the 
object  of  it  would  increase  in  value  hour  after  hour.  The  Court  hav- 
ing decided  against  him,  primd  facie  the  costs  follow  that  decision  ; 
and  then  the  question  arises,  whether  he  has  in  fact  made  a  suit 
necessary.  Now  his  delay  Avas  the  sole  cause  of  it,  and  his  subse- 
quent conduct  shows  that  his  excuse  was  not  sincere,  and  that  he 
had  never  any  solid  objection  to  the  title,  but  had  other  interested 
motives."^ 

19.  Although,  as  has  been  seen,  the  usual  practice  in  equity 
now  is,  to  allow  costs  to  the  prevailing  party,  a  contrajy  doctrine 
has  sometimes  heretofore  prevailed.  Thus  a  bill  by  a  purchaser 
for  specific  performance  was  ordered  to  be  dismissed  for  defect  of 
title,  a  necessary  party  not  choosing  to  concur  in  conveying.  But 
the  order  was  made  to  dismiss  without  costs,  it  being  against  the 
principles  of  the  Court  to  order  the  defendant  to  pay  the  plaintiff 
his  costs.2 

20.  As  has  been  already  suggested  (§  2),  in  equity  costs  do  not 
follow  the  event  of  the  suit,  where  a  fair  question  is  raised. (a) 
Lord  Eldon  remarks,  "The  question  I  have  to  decide  is,  not 
whether  the  conduct  of  either  party  was  right  or  wrong,  <fec.,  but 
M^hether  there  was  a  fair  ground  for  dispute.  As  to  the  costs 
of  the  suit  in  equity,  it  is  in  many  cases  very  hard,  that  costs 
should  follow  the  event  of  the  cause  ;  yet  all  my  experience  has 
persuaded  me,  that  it  is  much  to  be  wished  that  the  course  of  the 
Court  was  so.     Certainly,  however,  that  is  not  the  present  course 

1  Wyville  v.  Bishop  of  Exeter,  1  Price,  2  Lewis  v.  Loxham,  3  Mer.  429. 

292,  297. 

(a)  In  Campbell  v.  Home,  1  You.  &  any  ground  for  the  objection  wliich  lias 
Coll.  670,  where  the  losing  party  had  been  been  brought  forward  against  this  appoint- 
in  fault,  the  Vice- Chancellor  said,  "Con-  ment,  it  is  impossible  for  me  to  give 
sidering  the  line  of  defence  taken  by  the  Colonel  Home  his  costs.  I  do  not,  how- 
answer,  and  the  quantity  of  irrelevant  ever,  tliink  it  necessary  to  fix  him  with 
matter  into  which  the  defendant  has  trav-  costs." 
elled ;  and  considering  also  the  absence  of 


554  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.    XXXVI. 

of  the  Court.  Where  there  is  a  fair  case  for  consideration,  it 
is  not  the  course  to  visit  the  party  who  fails  with  costs.  Upon  the 
question  in  this  cause,  which  I  separate  from  all  questions  upon 
the  propriety  of  previous  conduct,  my  opinion  has  never  fluctu- 
ated ;  but,  the  Master  having  expressed  his  opinion  that  this  cove- 
nant ought  not  to  have  been  inserted,  and  considering  what  passed 
at  law,  that  the  judges  would  not  decide  the  case  until  they  had 
the  opinion  of  this  Court,  and  that  professional  men  have  differed 
upon  the  question,  it  would  be  too  presumptuous  in  me  to  set  such 
a  value  upon  my  own  opinion  by  marking  the  resistance  of  the 
defendant  with  costs."  ^ 

21.  Specific  performance  was  decreed  w  ithout  costs,  the  abstract 
delivered  not  containing  a  satisfactory  title.^  So  although  the 
title  was  established  before  the  Master.^  So  where  the  suit  was 
occasioned  by  the  vendor's  refusal  to  produce  documents  insisted 
on  by  the  purchaser,  some  of  which  were  necessary,  and  others 
not.^  So  upon  a  bill  for  specific  performance  by  a  vendee,  who 
tenders  the  price,  but  fails  to  bring  it  into  court.^  So  the  father 
of  the  plaintiff  purchased  land,  paid  for  it,  and  continued  in  pos- 
session thirty  years,  till  his  death,  but  never  received  a  deed. 
The  plaintiff  files  his  bill  against  the  defendant,  a  devisee  of  the 
vendor,  for  a  deed.  Decree  for  a  conveyance,  but  without  costs.^ 
So  on  a  decree  for  specific  performance  against  the  infant  heir 
of  a  vendor,  the  Court,  where  there  has  been  no  default  on  either 
side,  will  give  no  costs.'^  So  a  bill,  for  specific  performance  of 
a  contract  to  make  a  lease  to  the  defendant,  was  dismissed  without 
costs ;  the  plaintiff  having  after  answer  given  a  notice  to  quit, 
according  to  a  proviso  for  determining  the  lease.^  So  A.  con- 
tracted to  sell  to  B.,  but,  at  the  request  of  B.  (who  intended 
to  build,  and  sell  in  lots),  the  conveyance  was  delayed.  In  the 
mean  time  A.  died  intestate,  and  a  bill  became  necessary  for  the 
completion  of  the  contract.  Held,  that  the  costs  of  the  suit, 
which  was  rendered  necessary  by  the  intestacy  of  A.,  ought  not  to 
be  thrown  on  his  estate.  Turner,  V.C.,  says,  "The  cases  on  the 
subject  stand  thus :  Sir  L.  Shadwell  has  decided,  that,  if  a  vendor 
dies,  not  having  devised  the  legal  estate  to  trustees  to  complete 

1  Staines  v.  Morris,  1  Ves.  &  B.  8,  15;  5  Galloway  v.  Barr,  12  Ohio,  354. 
Cox  V.  Chamberlain,  4  Ves.  631.  6  Frobock  v.  Edwards,  2  Hay.  361. 

2  Wilson  V.  Clapham,  1  Jac.  &  W.  36.  '  Hanson  v.  Lake,  2  You.  &  Coll.  328. 

3  CoUinge's  case,  3  Ves.  &  B.  143  n.  8  Western  v.  Terrin,  3  Ves.  &  B.  197. 

4  NewaU  v.  Smith,  1  Jac.  &  W.  263. 


CHAP.   XXXVI.]  COSTS.  555 

the  sale,  his  estate  must  bear  the  costs  of  a  suit  l)y  the  purchaser 
to  obtain  a  conveyance.  Sir  J.  L.  Knight  Bruce,  V.C.,  on  the 
other  hand,  has  decided,  that,  if  there  be  no  default  on  eitlicr  side, 
there  ought  to  be  no  costs  given.  In  this  difference  of  opinion, 
I  prefer  to  follow  the  latter  decision,  especially  as  in  this  case  the 
non-completion  and  the  non-execution  of  a  conveyance  was  for  tlie 
convenience  of  the  purchaser  himself.  I  cannot  make  the  estate 
of  a  party  pay  costs  merely  because  he  has,  by  the  act  of  God, 
become  unable  to  execute  the  conveyance."^ 

22.  If  during  the  pendency  of  a  bill,  for  an  injunction  to  a 
judgment  for  the  purchase-money,  and  for  the  rescission  of  the 
purchase,  on  the  ground  of  an  incumbrance  and  a  defect  of  title, 
the  vendor  removes  the  incumbrance  and  procures  the  title ;  the 
injunction  will  be  dissolved,  with  costs  to  the  plaintiff,  but  without 
damages.  But,  if  the  plaintiff  had  another  case  depending,  involv- 
ing the  same  questions,  wliere  he  could  have  had  the  relief  asked 
for,  by  a  proceeding  in  that  case,  he  will  not  be  allowed  his  costs.^ 

23.  Upon  a  late  decision  of  the  Court  of  Excliequer,  that  a  pre- 
sumption, from  non-payment  of  tithes,  cannot  bar  even  a  lay  im- 
propriator, the  Lord  Chancellor,  though  holding  the  contrary 
opinion,  would  not  compel  a  purchaser  to  take  such  a  title  ;  and 
dismissed  the  bill  against  him  for  a  specific  performance,  but 
without  costs.^  So  a  lessee's  bill  for  specific  performance  was  dis- 
missed ;  his  interest,  described  as  fifty  years,  the  residue  of  a  term, 
free  from  incumbrances,  being  a  few  years  only  of  an  old  term, 
and  a  reversionary  term,  from  another  lessor ;  and  old  incum- 
brances not  being  shown  to  be  discharged  ;  but  without  costs.'* 
So  where,  in  a  suit  by  a  vendor  for  specific  performance,  the 
Master  reported  in  favor  of  the  title,  but  the  Court,  on  an  exce]> 
tion  taken  liy  the  purchaser,  deemed  the  title  doubtful ;  an  order 
was  made,  dismissing  the  bill  without  costs,  but  neither  allowing 
nor  disallowing  the  exception.^  So,  on  dismissing  a  bill  by  tlie 
heir  and  executor  of  a  purchaser,  to  have  a  good  title  made  by  the 
vendor,  and  to  restrain  collection  of  the  purchase-money  till  such 
title  be  made ;  costs  should  not  be  decreed  against  the  plaintiffs 
jointly,  nor  against  the  executor  de  bonis  jjrojjriis.^ 

24.  Where  a  sale  was  vacated,  on  account  of  the  negligence  of 

1  Hinder  v.  Streeter,  12  Eng.  Law  &         *  Wliite  v.  Foljambe,  11  Ves.  337. 
Eq.  345.  5  Wilcox  v.  Bellaers,  Turn.  &  R.  4U1. 

'^  Young  V.  McClung,  9  Gratt.  336.  6  Long  v.  Israel,  9  Leigh,  65G. 

3  Rose  V.  CaUand,  5  Ves.  186. 


556  LAW   OF    VENDORS   AND    PURCHASERS.     [CHAP.    XXXVI. 

tlie  solicitor  and  Master  in  describing  the  property,  costs  were  re- 
fused to  them  on  the  motion  to  discharge  the  purchasers,  and  for 
a  resale.  The  Vice-Chancellor  said,  "  The  infants,  to  whom  the 
money  in  this  case  belongs,  have  been  seriously  prejudiced  by 
the  resale.  The  Court  was  obliged  to  relieve  the  former  purchaser, 
because  of  the  loose  manner  in  which  the  property  had  been  put 
up  and  sold.  This  was  the  fault  of  both  solicitor  and  Master. 
The  description  of  the  property,  as  given  in  the  mortgage  and  in 
the  decree,  speaking  as  it  does  of  a  party  wall,  was  sufficient  to 
have  put  them  on  inquiry  as  to  how  the  property  should  be  sold 
with  reference  to  party  walls  or  other  circumstances  which  might 
affect  the  sale  ;  and  yet  no  inquiries  were  made  and  no  heed  taken 
of  the  fact,  leaving  the  purchasers  in  the  dark  and  to  find  out 
afterwards  that  they  had  been  misled.  Under  these  circumstances, 
I  think  the  solicitor  for  the  complainant  must  forego  his  costs  on 
the  motion  to  discharge  the  purchasers,  and  of  the  order  for  a 
resale ;  and  that  the  Master  must,  also,  be  content  to  receive  the 
costs  and  expenses  of  only  once  advertising  and  selling  the  prop- 
erty."i 

25.  The  costs  of  suit  are  in  some  cases  divided  between  the 
parties.  Thus,  in  a  case  of  specific  performance,  the  Court  in 
New  York  remark,  "  Although  the  complainants  succeed  in  this 
suit,  it  does  not  necessarily  follow  that  they  are  entitled  to  costs 
against  the  defendants.  They  furnished  no  abstract  of  title  pre- 
vious to  filing  the  bill.  At  that  time  too  there  was  a  judgment 
outstanding,  which  was  apparently  an  incumbrance,  and  which 
they  took  no  steps  to  remove,  though  they  offered  to  leave  enough 
of  the  purchase-money  to  cover  tlie  amount.  The  defendants  were 
excusable  in  standing  out  until  the  title  could  be  investigated,  and 
under  the  circumstances  they  ought  not  to  be  made  to  pay  the 
costs  of  the  suit.  Nor  do  I  think  the  defendants  are  entitled  to 
costs  against  the  complainants.  The  fairest  ground  on  which 
to  put  it  is  that  both  parties  have,  in  some  degree,  been  in  the 
wrong  ;  and  as  to  the  costs  of  the  suit  generally,  each  party  should 
hear  their  own.  The  defendants,  however,  should  not  have  taken 
exception  to  the  Master's  report,  and  the  costs  consequent  on  this 
step  the  defendants  must  pay."  ^  So,  in  a  suit  for  specific  per- 
formance by  vendor  against  purchaser,  the  Master  reported,  that  a 

1  Walworth  v.  Anderson,  4  Edw.  Ch.         2  gcott  v.  Thorp,  4  Edw.  Ch.  1,  4. 

281. 


CHAP.    XXXVI.]  COSTS.  557 

good  title  was  first  shown  pending  the  reference,  except  as  to  a 
small  portion,  which  the  Court  regarded  as  a  subject  for  compen- 
sation. Held,  the  defendant  sh(^iild  have  costs  to  the  time  of 
amending  the  bill,  and  the  plaintiff  afterwards. ^ 

26.  In  a  late  English  case,^  the  Master  of  the  Rolls  said, 
"  With  respect  to  the  costs  of  the  suit,  I  must  look  to  the  general 
conduct  of  the  parties  ;  and  I  cannot  consider  this  as  a  suit  occa- 
sioned simply  by  a  question  respecting  the  payment  of  interest,  or 
decide,  because  the  amount  of  interest  has  been  determined  to  be 
less  than  the  plaintiffs  claimed  on  the  one  hand,  but  larger  than 
the  defendant  contended  ought  to  be  given  on  the  other,  that  I 
ought  to  divide  the  costs  of  the  suit.  The  contract  was  entered 
into  on  the  30th  of  November,  1843,  and  no  deposit  was  paid ;  it 
was  waived,  and  the  contract  under  which  the  parties  acted  may 
be  said  to  bear  date  the  30th  of  January,  1844.  It  is  impossible 
to  look  at  the  proceedings  of  Mr.  Mousley  throughout  this  business 
without  seeing  (whatever  may  have  been  the  cause)  that  there 
have  been  a  fighting  and  fencing  off  the  completion  of  this  con- 
tract ;  and  my  conviction  upon  the  evidence  is,  that  if  this  bill 
had  not  been  filed,  it  would  not  have  been  completed  up  to  this 
time.  The  delay  without  doubt  has  been  occasioned  by  the  con- 
duct of  the  defendant's  adviser ;  the  plaintiffs  therefore  ought 
not  to  bear  the  expense,  and,  consequently,  they  must  necessarily 
be  borne  by  the  defendant." 

27.  In  a  late  case,^  the  costs  were  divided,  in  consideration  of 
the  nature  of  the  several  objections  made  by  the  defendant  to  the 
plaintiff's  claim ;  the  character  of  which  appears  from  the  opinion 
of  the  Court.  Wood,  V.C.,  says,  "The  contest  in  some  degree 
arose  upon  the  question  of  conveyance,  which  was  still  unsettled  ; 
and  there  was  reason  to  suppose  that  this  question  might  possibly 
have  been  settled.  But  when  the  claim  was  filed,  other  objections 
were  raised  by  the  defendant  to  the  specific  performance  of  the 
agreement,  and  the  defendant  objected  to  complete  at  all,  and 
contended  that  he  was  not  bound  to  take  the  plaintiffs  title.  The 
question  of  title  had  then  passed,  and  the  only  question  was,  as  to 
the  conveyance  to  be  made  by  the  plaintiff.  If  at  the  hearing  the 
defendant  had  said  that  he  only  objected  to  the  form  of  the  con- 
veyance, a  decree  might  have  been  made  to  settle  the  conveyance, 

1  Freern  v.  Hesse,  17  Eng.  Law  &  Eq.  2  Slierwin  v.  Shakspeare,  23  Eng.  206. 
154.  3  Abbot  V.  Caltoii,  I'J  Eng.  G02. 


558  LAW    OF   VENDORS   AND   PURCHASERS.     [CHAP.   XXXVI. 

and  the  costs  of  the  suit  would  have  followed  the  result.  But  the 
question  now  raised  was,  in  fact,  that  there  was  not  any  contract. 
This  question  was  paramount  to  that  of  title,  and  if  a  question 
was  raised  prior  to  the  question  of  title,  the  vendor  would  not  he 
called  upon  to  perfect  his  title,  and  the  costs  of  establishing  the 
prior  question  would  fall  upon  the  party  who  failed.  The  defend- 
ant has  taken  his  chance  of  success  upon  the  prior  ground,  and, 
liaving  failetl,  must  pay  the  costs  of  the  suit,  except  the  costs  of 
the  exceptions  and  of  the  affidavits  adduced  by  the  plaintiff  in 
support  of  his  title." 

28.  The  question  of  costs  has  often  arisen  in  connection  with  an 
inquiry  into  the  title,  upon  a  reference  to  the  blaster. (a) 

29.  The  fact,  that  a  title  has  been  perfected  in  the  Master's 
office,  does  not  determine  the  question  of  costs  in  a  suit  for  specific 
performance.  This  depends  upon  the  consideration,  whether  the 
defects  removed  there  were  the  occasion  of  the  suit.  The  Master 
of  the  Rolls  says,  "  The  purchaser  takes  a  reference  to  the  Master 
to  inquire  into  the  title,  and  then  raises  all  possible  objections  to 
the  title,  most  of  which,  however,  were  overruled ;  one  of  them 
related  to  a  mortgage  mentioned  -in  a  deed  of  upwards  of  one 
hundred  years  old,  which  had  not  since  been  heard  of;  the  vendor 
contended  that  the  mortgage  term  must  be  presumed  to  have  been 
satisfied,  but,  upon  search,  an  old  deed  of  reconveyance  was  found. 
This  fact  was  relied  on  by  the  defendant,  as  showing  that  a  good 
title  had  not  been  previously  made  out ;  but,  because  new  evidence 
was  brought  forward  in  the  Master's  office  by  the  vendor,  must  it 
necessarily  be  taken  for  granted  that  a  good  title  had  not  previously 
been  made  out,  and  must  the  vendor,  on  that  account,  pay  the 
costs  ?  To  establish  such  a  rule  would  be  most  prejudicial,  not 
only  to  a  vendor  but  to  a  purchaser  ;  for  the  vendor  would  thereby 
be  deterred  from  bringing  forward  any  new  evidence  in  the  Mas- 
ter's office  in  confirmation  of  his  title,  for  fear  of  rendering  him- 
self liable  to  pay  the  costs  of  the  suit."  ^ 

30.  A  purchaser  declined  to  perform  the  contract,  on  the  ground 

1  Scoones  v.  Morrell,  1  Beav.  251,  257. 

(a)  The  Master's  decision  on  questions  Master  to  disallow  the  charge  made  in  re- 
ef taxation*  is  final  as  to  matters  of  fact,  spect  of  such  proceeding.  Alsop  v.  Ox- 
and  amount  of  charges,  and  is  only  re-  ford,  1  Myl.  &  Kee.  564. 
viewed  by  tlie  Court,  wlien  he  acts  upon  Where  a  Master's  report  is  against  the 
a  mistaken  principle  ;  and,  if  the  solicitor  title,  a  vendor's  bill  may  be  dismissed  with 
negligently  or  ignorantly  takes  some  un-  costs  upon  motion.  Beunet  College  v. 
necessary  proceeding,  it  is  the  duty  of  the  Carey,  '6  Bro.  C.  C.  390. 


CHAP.    XXXVI.]  COSTS.  559 

of  inadequacy  of  value.  In  a  suit  by  the  vendor  for  specific  per- 
formance, by  a  decree,  dated  April,  1851,  it  was  declared  that  he 
was  entitled  to  such  performance,  and  a  reference  was  made  to 
the  Master,  to  inquire  whether  the  plaintiff  could  make  a  good 
title,  and,  if  so,  to  state  when  such  good  title  was  first  shown ; 
and  costs  were  reserved.  The  Master  found  that  a  good  title  was 
made,  and  that  it  was  first  shown  in  April,  1852.  Held,  the 
plaintiff  was  entitled  to  the  costs  of  reference.  Parker,  V.C., 
says,  "  The  investigation  of  the  title  seems  to  have  proceeded  up 
to  a  certain  point,  and  then  the  defendant  insisted  that  the  contract 
was  not  binding  on  him  for  a  certain  reason ;  and,  thereupon,  the 
further  investigation  of  the  title  stopped,  and  the  plaintiff  filed  his 
bill  to  enforce  specific  performance  of  the  contract,  and  obtained  a 
decree.  I  entertain  no  doubt  that  a  plaintiff,  getting  a  decree  for 
specific  performance,  is  entitled  to  the  general  costs  of  the  suit ; 
and  the  only  question  is,  as  to  the  costs  of  the  reference  as  to  title. 
The  rule  of  the  Court  is  very  clear  as  to  this.  When  the  parties 
have  a  dispute  as  to  the  title,  and  the  question  of  specific  perform- 
ance turns  on  it,  the  Court,  if  it  finds  that  the  plaintiff  was  in  the 
wrong  when  he  filed  the  bill,  -considers  that  fact  in  disposing  of 
the  costs  of  the  suit,  and  sometimes  makes  a  decree  for  specific 
performance  only  on  the  terms  of  his  paying  the  costs,  because  he 
was  in  the  wrong  when  the  bill  was  filed.  This  case,  however, 
does  not  belong  to  that  class.  Here  the  reason  for  refusing  to 
complete  was  a  question  on  the  validity  of  the  contract.  Accord- 
ing to  the  case  of  Croome  v.  Lediard,  the  general  rule  would 
entitle  the  plaintiff  to  the  costs  of  the  reference  as  well  as  to  the 
general  costs  of  the  suit.  The  plaintiff  was  under  a  condition  to 
make  out  a  good  title,  which  he  would  have  done  at  his  own 
expense  if  there  had  been  no  suit  instituted.  I  think  that  the 
defendant  has  brought  upon  himself  the  costs  occasioned  by  having 
the  title  investigated  in  the  Master's  office.  The  only  doubt  which 
I  have  is  occasioned  by  the  direction  in  the  decree,  which  seems  to 
be  in  some  degree  inconsistent  with  that  view.  By  the  decree  it 
was  referred  to  the  Master  to  inquire  when  a  good  title  was  first 
shown.  I  think,  however,  that  I  am  not  bound  by  the  form  of  the 
decree  in  this  case  to  depart  from  the  general  rule  that,  where 
the  purchaser's  conduct  had  led  to  the  institution  of  the  suit,  he 
is  to  pay  the  costs  before  the  Master."  ^ 

1  Abbott  V.  Sworder,  15  Eng.  Law  &  Eq.  446. 


560  LAW    OF   VENDORS   AND    PURCHASERS.     [CHAP.  XXXVI. 

31.  A  vendor  filed  a  bill  for  specific  performance,  alleging  that 
the  defendant  had  accepted  the  title  ;  but  the  defendant  resisted  it, 
on  the  ground  that  the  bankruptcy  under  which  the  plaintiff 
claimed  was  invalid.  Neither  allegation  turned  out  correct ;  and, 
though  a  good  title  was  first  shown  in  the  Master's  office,  a  decree 
for  specific  performance  was  made,  without  costs.  The  Master  of 
the  Rolls  says,  "  If  the  plaintiff  in  this  bill  had  proceeded  on  this 
allegation :  '  I  have  entered  into  a  contract,  and  am  ready  to  per- 
form it,  and  you  refuse,'  and  the  defendant  had  answered,  '  I  admit 
the  contract  and  am  willing  to  perform  it,  but  you  cannot  make  a 
good  title  without  the  concurrence  of  the  assignee  of  the  insol- 
vency, which  you  refuse  to  obtain  ; '  if  that  had  been  the  only 
question  in  litigation,  and  a  goQd  title,  i.e.,  in  the  case  supposed, 
the  concurrence  of  the  assignee,  had  been  first  shown  in  the 
Master's  office,  then  the  plaintiff  would  have  had  to  pay  the  costs 
of  the  suit.  That  is  the  general  rule,  but  it  is  not  a  rule  applica- 
ble to  every  case  whatever ;  it  is  subject  to  a  variety  of  modifica- 
tions arising  out  of  the  particular  circumstances  of  each  case. 
Here  both  parties  made  erroneous  allegations:  the  plaintiff  alleged 
that  the  defendant  had  accepted  the  title ;  the  defendant,  that  a 
good  title  could  not  be  made  because  the  fiat  was  invalid.  The 
real  question  never  occurred  to  either  party  until  a  very  late 
period  in  the  cause,  I  think,  under  the  circumstances,  I  cannot 
give  costs  to  either  side."  ^ 

32.  By  the  same  instrument,  the  plaintiff  agreed  to  sell  an 
estate  to  the  defendant,  and  the  defendant  another  estate  to  the 
plaintiff.  The  defendant,  being  unable  to  make  a  good  title, 
unsuccessfully  resisted  performance  of  his  agreement  to  purchase 
the  plaintiff's  estate,  on  the  ground  that  the  agreement  was  in- 
tended to  take  effect,  only  on  the  basis  of  a  mutual  exchange. 
On  a  reference  of  the  plaintiff's  title,  the  Master  found  that  the 
plaintiff  could  make  a  good  title,  but  not  that  he  could  make  such 
title  before  the  filing  of  the  bill,  the  consideration  of  time  having 
been  expressly  excluded,  at  the  hearing,  from  the  terms  of  refer- 
ence. Held,  the  defendant  was  liable  to  the  costs  of  investigating 
the  title  in  the  Master's  office.^ 

33.  A  bill  prayed  specific  performance,  "  if  a  good  title  could  be 
made."     At  the  hearing,  it  was  declared  that  the  agreement  ought 

1  Sidebotham  v.  Barrington,  5  Beav.  2  Crooiue  v.  Lediard,  2  My.  &  Kee. 
261,  262.  293. 


CHAP.   XXXVI.]  COSTS.  5G1 

to  be  specifically  performed,  and  referred  to  the  Master  to  inquire, 
whether  a  good  title  could  be  made.  The  ]\Iaster  reported  in  the 
negative.  The  plaintiff,  on  further  directions,  waived  all  ol)jcctions 
to  the  title,  and  proposed  to  take  the  property ;  but  this  was 
resisted  by  the  vendor.  Held,  the  plaintiff  was  entitled  to  the 
property,  but,  being  aware  at  the  first  hearing  of  the  objections  to 
the  title,  he  ought  to  pay  the  costs  of  the  investigation  in  the 
Master's  office.^ 

34.  In  a  suit  for  specific  performance  by  a  vendor,  the  costs 
will  be  thrown  upon  the  purchaser,  though  the  Master  reports  that 
a  good  title  was  not  shown  till  after  the  filing  of  the  bill,  if  that 
finding  proceeded  on  the  ground,  that  certain  evidence  had  not 
been  previously  furnished,  which  the  vendor  had  offered  to  produce, 
but  which  had  not  been  actually  produced,  before  the  institution  of 
the  suit,  in  consequence  of  the  purchaser's  insisting  upon  other 
unsubstantial  objections.^ 

35.  The  question  sometimes  arises,  as  to  the  right  of  a  party 
who  has  been  compelled  to  pay  costs  to  recover  them  back  from 
other  parties. 

36.  Where  an  auctioneer  has  sold  an  estate,  the  title  of  which 
being  objected  to,  and  he  refusing  to  return  the  deposit,  an  action 
is  brought,  in  which  he  afterwards  pays  the  costs  ;  the  auctioneer 
cannot  recover  these  costs  against  the  principal  in  an  action  for 
money  paid  to  his  use,  but  must  declare  specially .^ 

37.  A  bill  for  specific  performance  was  made  necessary,  by  a 
trustee's  refusing  to  join  in  the  conveyance.  The  Court  being  of 
opinion,  tliat  the  trustee  ought  to  pay  all  the  costs  of  the  suit,  the 
decree  was,  that  the  plaintiff  should  pay  the  costs  of  all  the  other 
defendants  (although  he  had  a  decree  against  them),  and  recover 
over  the  whole  costs  from  the  defendant,  the  trustee.^ 

38.  In  connection  with  the  subject  of  this  chapter,  may  be  con- 
sidered the  mutual  claims  of  vendor  and  vendee  for  incidental 
expenses  connected  with  the  sale,  not  strictly  coming  under  the 
denomination  of  costs. 

39.  An  act,  which  enabled  a  company  to  purchase  and  take 
land  for  making  a  railway,  provided  that  the  costs  of  the  "  con- 
tracts, sales,  and  conveyances  "  should  be  borne  by  the  purchasers. 

1  Bennett  v.  Fowler,  2  Beav.  302.  3  Spurrier  v.  Elderton,  5  Esp.  Ca.  1. 

2  Long  V.  Collier,  4  Kuss.  209.  *  Jones  v.  Lewis,  1  Cox,  I'JU. 

36 


562  LAW    OF   VENDORS   AND    PURCHASEES.     [CHAP.   XXXVI. 

Held,  the  vendors  of  land  were,  under  these  words,  entitled  to  be 
reimbursed  the  costs  of  making  out  their  title. ^(a) 

40.  Construction  of  a  contract,  that  a  reference  of  the  expenses 
was  confined  to  the  expense  of  the  conveyance,  but  the  evidence 
of  the  attorney  was  admitted  for  the  defendant,  to  prove  the 
intention  of  both  parties,  according  to  verbal  instructions,  that  the 
plaintiff,  tlie  purchaser,  should  also  pay  the  expense  of  making 
out  the  defendant's  title.^ 

41.  Where  title-deeds  are  in  the  hands  of  persons  residing 
in  different  parts  of  the  country,  the  vendor  must  bear  the  expense 
of  the  purchaser's  sending  a  clerk  to  compare  tlie  abstract  with  the 
deeds.^ 

42.  A  purchaser  at  auction  cannot  recover  from  the  vendor  the 
expenses  of  preparing  the  deeds,  after  he  has  refused  to  complete 
the  purchase,  on  account  of  the  non-production  of  certain  title- 
deeds  ;  though  his  attorney  prepared  the  conveyances,  on  the  faith 
of  a  note  written  in  tlie  margin  of  the  abstract  by  the  vendor's 
solicitors,  stating  that  all  the  title-deeds  were  examined  by  them  on 
the  original  purchase,  and  that,  if  it  shouM  be  required,  they 
would  apply  to  the  solicitor  for  the  original  seller  in  whose  custody 
they  were.^ 

1  Addies  Charity,  3  Hare,  22.  ^  Hughes  v.  Wynne,  8  Sim.  85. 

2  Ramsbottom  v.  Gosdon,  1  Ves.  &  ■*  Jarraain  v.  Egelstone,  5  Carr.  &  Pay. 
Beam.  165.  172. 

(a)  So,  where  the  company  are  made  money  in  the  funds,  previously  to  its  being 

liable  to  the  expenses  of  "all  purchases  "  laid  out  in  lands,  to  be  settled  to  the  like 

to  be  made  by  virtue  of  the  act,  this  will  uses  as   the  land  purchased.     Bishop  of 

include   the    expenses    of   investing   the  Durham,  3  You.  &  Coll.  (590. 


CHAP.    XXXVII.]  PARTIES   TO    ACTIONS.  563 


CHAPTER    XXXVII. 


PARTIES   TO    ACTIONS. 

1.  We  have  already  (ch.  5)  considered  the  necessity,  and  the 
respective  rights  and  liabilities,  of  2>arties  to  the  contract  of  sale 
and  purchase.  The  same  subject  has  been  particularly  noticed  in 
the  chapter  relating  to  specific  performance.  Having  now  completed 
our  view  of  the  remedies  in  equity  and  law  for  breach  of  such  con- 
tract, and  the  measure  and  amount  of  compensation  to  be  recov- 
ered ;  we  proceed  to  some  further  inquiries  connected  with  the  same 
general  subject,  but  more  particularly  relating  to  the  forms  of  pro- 
ceeding. Among  the  most  important  points  of  this  nature  is  that 
of  the  proper  parties  to  a  suit,  brought  in  law  or  equity  by  either 
the  vendor  or  the  vendee  upon  the  contract  of  sale. (a) 

2.  To  a  common  bill  for  specific  performance  of  a  sale,  the  par- 
ties to  the  contract  are  the  only  proper  parties.  Upon  this  subject 
Lord  Cottenham  remarked,  "  The  contract  is  in  the  usual  form, 
between  John  Wood,  the  vendor,  and  Thomas  White,  the  pur- 
chaser ;  and  they  alone  ought  to  have  been  parties  to  the  suit ; 
instead  of  which,  the  trustees  of  Mr.  Lucas's  settlement,  and  she 
and  her  husband  are  made  parties  co-plaintiffs  with  the  vendor, 
John  Wood.  If  their  concurrence  had  been  necessary  to  give 
security  to  the  purchaser,  it  was  for  John  Wood  to  bring  them 
forward  to  assist  in  giving  effect  to  his  contract ;  but  as  plaintiffs 
they  have  no  title  to  sue.     If  the  infant  children  of  William  had 

(a)  Upon  the  point,  who  may  be  con-  tion,  he  had  brought  forward  this  claim  as 

sidered  a  party  to  the  suit,  it  lias  been  to  the  deposit,  and  it  appeared  to  have 

held,  with  reference  to  a  claim  concerning  been  just,  the  Court  would  have  enforced 

a  deposit,  that  a  defendant  is  not  a  party  it ;  not  in  tlie  nature  of  relief  to  him,  but 

seeking  the  aid  of  the  Court,  and  therefore  is  as  a  condition  annexed  to  the  relief  given 

not  entitled  to  an  interlocutory  order  for  to  tiie  plaintiff.    And  although  the  defend- 

his  own  relief  or  security,  as  to  the  sub-  ant  has  neglected  the  convenient  oppor- 

ject-matter  of  a  suit,  unless  as  a  condition  tunity  for  the  apijlication,  yet  I  think  it 

of  an  order  applied  tor  by  the  plaintiff,  still  open  to  him,  and  that  I  may  consider 

The  Vice-Chancellor   says,    "  Though   a  it  in  principle  as  a  motion  to  dissolve  the 

defendant  cannot  primarily  move  for  any  injunction,  unless   the   plaintitt"  pay   the 

order  for  his  security,  because  he  is  not  a  money  into   court."     Wynne  v.  Griffith, 

party  seeking  the  aid  of  the  Court ;  yet  1  Sim.  &  Stu.  147,  149. 
if,  at  the  time  of  continuing  the  injunc- 


564  LAW   OF   VENDORS   AND    PURCHASERS.    [CHAP.  XXXVII. 

been  made  co-plaintiffs,  or  if  there  had  been  children  of  Mr.  and 
Mrs.  Lucas,  and  they  had  been  made  co-plaintiffs,  I  should  have 
refused  to  make  any  decree  in  a  cause  so  constituted,  because  I 
should  have  supposed  that  the  object  was  to  attempt  to  bind  the 
infants  in  a  suit,  by  the  proceedings  of  which  they  ought  not  to  be 
bound ;  but  as  all  the  plaintiffs  are  adults,  and  the  objection  has 
not  been  taken  by  the  defendant,  I  do  not  think  it  necessary  to  do 
more  than  to  observe  upon  the  frame  of  the  suit,  that  it  may  not 
be  supposed,  by  my  making  a  decree  in  it,  to  have  received  any 
sanction  from  me."  ^  And  in  a  very  late  case  it  is  said,  "  A  mere 
stranger,  claiming  under  an  adverse  title,  cannot  be  made  a  party 
to  a  suit  for  specific  performance.  There  is  no  equity  against  him 
independently  of  the  agreement ;  and  the  agreement  to  which  he 
was  not  a  party  cannot  create  such  an  equity."  ^ 

3.  But  thougli,  in  general,  none  but  the  signers  of  the  contract 
ought  to  be  parties  to  a  bill  for  specific  performance  ;  yet  a  pur- 
chaser may,  under  special  circumstances,  make  other  persons 
interested  in  the  estate  defendants. ^ 

4.  Separate  purchasers  of  different  parcels  of  the  same  lot  can- 
not join  in  a  bill  against  the  former  owner,  to  compel  the  perform- 
ance of  a  prior  contract  for  the  sale  and  purchase  of  such  lot, 
between  the  former  owner  and  another  person,  upon  the  ground 
that  such  prior  contract  has  been  assigned  to  one  of  the  complain- 
ants, as  well  in  his  own  behalf,  as  to  protect  the  interests  of  his 
co-complainants ;  where  there  is  nothing  beyond  the  averment  in 
the  bill,  to  show  that  the  purchase  or  transfer  of  such  contract  was 
for  the  benefit  of  all  the  complainants,  or  was  made  at  their  re- 
quest, or  with  their  assent.  The  Court  remark,  in  substance,  that 
persons  having  distinct  claims  against  another,  arising  upon  sep- 
arate and  independent  contracts,  cannot  join  in  a  bill  to  enforce 
such  claims,  where  there  is  no  proof  of  a  common  interest  in  the 
subject-matter.  To  allow  persons  having  distinct  claims  against 
the  same  individual  to  maintain  a  joint  suit  against  him,  merely 
because  the  act  of  one  may,  if  valid,  incidentally  prove  beneficial 
to  the  others,  might  be  productive  of  great  oppression  and  injus- 
tice.4 

5.  Upon  the  same  ground,  a  demurrer  by  a  defendant  for  multi- 

1  Wood  V.  White,  4  Myl.  &  Cra.  460.     p.   169 ;   ace.  Tasker  v.  Small,  3  Myl.  & 

2  Per  Sir  G.  J.  Turner,  De  Hoghton  v.     Cr.  63. 

Morey,  Law  Rep.  (Eng.)  Eq.  March,  1867,  3  Tasker  v.  Small,  6  Sim.  683. 

*  Wood  V.  Perry,  1  Barb.  114. 


CHAP.    XXXVII.]  PARTIES   TO    ACTIONS.  5G5 

fariousness,  the  bill  being  against  several  purchasers  and  others, 
was  allowed.  The  Vice-Chancellor  says,  "  The  estate  was  vested 
in  the  plaintiffs,  for  the  purpose  of  selling  the  same  ;  and  that 
part  of  the  estate  was  accordingly  sold  in  six  different  lots,  to  six 
different  purchasers,  who,  with  several  other  persons,  are  made 
defendants  to  this  bill.  A  separate  agreement  had  been  entered 
into  with  each  purchaser.  Some  of  the  purchasers  have  not  de- 
murred. The  Court  is  always  averse  to  a  multiplicity  of  suits  ; 
but,  certainly,  a  defendant  has  a  right  to  insist  that  he  is  not 
bound  to  answer  a  bill  containing  several  distinct  and  separate 
matters  relating  to  individuals  with  whom  he  has  no  concern.  A 
decisive  objection  to  this  bill  is,  that  the  purchases  of  the  different 
lots  are  made  by  distinct  persons,  each  agreement  being  separate 
and  distinct.  The  circumstances  attending  the  sale  of  one  lot  may 
be  very  different  from  those  relating  to  other  lots ;  one  may  have 
objections,  another  has  not."  ^ 

6.  Two  houses  held  under  one  lease  were  sold  in  separate  lots, 
and  it  was  stipulated  that  the  purchasers  should  be  parties  to  each 
other's  assignment.  Held,  the  purchaser  of  one  lot  was  not  a 
necessary  party  to  a  suit  for  specific  performance  against  the  pur- 
chaser of  the  other.  The  Master  of  the  Rolls  says,  "  If  there 
is  to.  be  a  specific  performance  of  the  contract,  the  purchaser 
of  lot  2  will  be  bound  to  concur  in  the'  assignment;  but  is  it 
necessary  that  he  should  be  a  party  to  all  the  litigation  between 
the  vendor  and  the  purchaser  of  lot  1  ?  I  think  not ;  besides 
this,  the  bill  alleges  that  he  is  ready  to  concur.  Althougli  it  might 
by  possibility  become  necessary  hereafter  to  compel  him  to  join  in 
the  assignment,  still  I  see  no  reason  for  making  him  a  party  to  a 
suit  until  that  necessity  arises."  ^(a) 

1  Brookes  v.  Whitwortli,  1  Madd.  86,  2  Paterson  v.  Long,  5  Beav.  18G,  187. 

88.     See  Reyner  v.  Julian,  2  Dick.  677  ; 
Wall  V.  Northumberland,  2  Anstr.  469. 

(a)  It  has  been  lield,  that  a  demurrer  a  bubble  called  the  Penns3dvania  Bubble, 
will  not  lie  to  a  bill  for  being  multitkrious.  and  to  have  his  money  repaid,  which  he 
But  upon  the  general  subject  the  Court  had  paid  to  the  defendants  for  sliares  sold 
remark,  "  Each  party's  case  would  be  by  them  respectively  ;  and  charges  that 
distinct,  and  would  depend  upon  its  own  the  defendants  had  formed  tlieniselves 
peculiar  circumstances  ;  and  there  must  into  a  society  to  carry  on  the  fraud.  The 
have  been  a  distinct  bill  upon  each  con-  defendants  demurred,  because  the  bill  con- 
tract."    liayner  v.  Julian,  2  Dick.  677.  tained  several  and  distinct  charges  against 

The  case  of  Bull  v.  Allen  (Bunb.  69)  several  and  distinct  defendants;  and  tlie 

was  a  "  bill  to  be  relieved  agamst  several  demurrer  was  allowed.    Xo/<i,  they  denied 

contracts   entered   into    by   the    plaintiff  combination,  as  is  necessary  upon  such  a 

with  the  defendants,  relating  to  shares  in  demurrer  as  this." 


566  LAW    OP   VENDOES    AND   PUECHASERS.    [CHAP.  XXXVII. 

7.  C.  contracted,  as  agent  of  A.  and  B.,  to  sell  an  estate  to  D., 
and  received  a  deposit  in  part-payment  of  the  intended  purchase- 
money.  C.'s  agency  was  afterwards  denied  by  A.  and  B.,  and  D. 
then  filed  a  bill  against  A.,  B.,  and  C,  praying  a  specific  perform- 
ance, or,  in  the  alternative,  that  C.  might  be  decreed  to  return  the 
deposit,  and  to  reimburse  the  plaintiff  all  the  expenses  of  endeav- 
oring to  enforce  the  contract.  Bill  dismissed  with  costs.  In  this 
case,  upon  the  general  subject  of  compensation  in  equity.  Lord  Cot- 
tenham  said,  "  I  certainly  recollect  the  time  at  which  there  was 
a  floating  idea  in  the  profession  that  this  Court  might  award  com- 
pensation for  the  injury  sustained  by  the  non-performance  of  a 
contract,  in  the  event  of  the  primary  relief  for  a  specific  perform- 
ance failing."  ^ 

8.  In  case  of  fraud  on  the  part  of  a  vendee,  a  subsequent  convey- 
ance, while  the  fraudulent  vendee  is  in  actual  possession,  claiming 
the  land,  is  inoperative  ;  and  a  suit  to  set  aside  the  first  sale  must 
be  brought  in  the  name  of  the  vendor,  or  of  his  legal  representa- 
tives if  he  is  dead.^  And,  where  the  vendor  is  dead,  all  his  heirs 
should  be  parties  to  a  bill,  to  set  aside  the  sale  for  fraud  of  the 
vendee.^ 

8  a.  In  the  recent  case  of  De  Hoghton  v.  Morey,^  Sir  G.  J.  Tur- 
ner, L.J.,  remarked,  "  The  right  to  complain  of  a  fraud  is  not  a 
marketable  commodity  ;  and  if  it  appears  that  an  agreement  for 
purchase  has  been  entered  into  for  the  purpose  of  acquiring  such  a 
right,  tiie  purchaser  cannot  call  upon  this  Court  to  enforce  specific 
performance.  Such  a  transaction,  if  not  in  strictness  amounting 
to  maintenance,  savors  of  it  too  much  for  this  Court  to  give  its 
aid  to  enforce  the  agreement."  But  in  another  recent  decision, 
although  admitted  that,  in  "  ordinary  cases  of  suits  for  specific 
performance,  the  vendor  and  purchaser  are  the  only  proper  and 
necessary  parties  to  the  suit,"  it  is  strongly  intimated,  though  not 
distinctly  decided,  that  in  case  of  a  previous  alleged  voluntary 
settlement,  which  would  be  fraudulent  and  void  as  against  the 
purchaser,  he  may  join  such  parties  as  are  necessary  in  order  to 
try  the  question  of  fraud.^ 

9.  To  a  suit  by  the  personal  representative  of  a  vendor  for  spe- 

1  Sainsbury  v.  Jones,  5  Myl.  &  Cra.  *  Law  Rep.  (Eng.)  Eq.  March,  1867,  p. 
1,  3.     See  p.  439.                                                169. 

2  Livingston  v.  Peru,  &c.,  2  Paige,  390.  5  Per   Sir   G.  J.  Turner,  L.J.,  Town- 
2  Ibid.                                                           end  v.  Toker,  Law  Rep.  (Eng.)  Eq.  Aug. 

1866,  p.  456. 


CHAP.    XXXVII.]  PARTIES   TO    ACTIONS.  567 

cific  performance,  his  real  representative  is  a  necessary  party.  The 
Lord  Chancellor  said,  "  This  was  a  suit  by  the  administrator  of 
the  vendor  against  the  purchaser  of  an  estate  for  a  specific  per- 
formance of  the  agreement  of  sale.  Tiie  defendant  by  his  answer 
objected  that  the  heir-at-law  of  the  vendor  ought  to  have  been  a 
party  to  the  suit.  It  was  argued  that  by  the  contract  the  estate 
was  converted  into  personalty,  and  that  the  heir-at-law  had  no 
interest  in  the  matter.  But  that  is  to  assume  the  very  point  in 
controversy,  for  the  heir-at-law  may  dispute  tlie  contract,  and  con- 
trovert its  validity.  It  was  further  argued,  that,  as  a  general 
rule,  it  is  not  necessary  to  make  parties  to  the  bill  those  who  are 
not  parties  to  the  contract,  but  that  rule  does  not  extend  to  repre- 
sentatives ;  and  the  heir-at-law  is  the  representative  of  the  vendor 
as  to  the  realty.  The  cases  which  were  cited  do  not  apply.  The 
mortgagee,  it  is  said,  need  not  be  a  party  in  a  suit  by  the  mortga- 
gor. But  his  interest  is  not  affected  by  the  sale,  and  on  payment 
of  the  mortgage-money  by  the  purchaser  it  entirely  ceases.  So  as 
to  the  cases  where  the  sale  is  by  a  person  holding  the  estate  under 
a  conveyance  or  a  devise ;  the  heir-at-law  of  the  grantor  or  devisor 
need  not  be  made  a  party ;  he  does  not  claim  through,  or  in  any 
way  represent,  the  vendor.  The  purchaser  is  not  to  be  prejudiced 
by  the  death  of  the  vendor,  but  is  entitled  to  the  same  benefit  from 
a  decree  as  if  it  had  passed  against  the  vendor  himself."  ^ 

9  a.  In  a  suit  demanding  the  specific  performance  of  a  contract, 
by  conveying  lands  in  Ohio,  stipulated  to  be  conveyed  as  the  con- 
sideration for  other  lands  sold  in  Kentucky,  or,  in  lieu  thereof,  re- 
quiring indemnification  by  the  payment  of  money ;  held,  all  the 
co-heirs  of  the  vendor,  deceased,  ought  to  be  made  parties  to  the 
bill,  or  the  death  of  one  omitted  to  be  proved. ^ 

9  h.  Where  a  vendor  dies,  and  his  representatives  file  a  bill  to 
enforce  payment  of  the  purchase-money,  and  to  obtain  authority  to 
convey ;  his  heirs  are  necessary  parties.  But  minor  heirs  need 
not  be  made  defendants,  nor  guardians  ad  litem  appointed.  They 
may  join  as  plaintiffs,  by  next  friend.^ 

10.  Bill  by  devisees  in  trust  to  sell,  for  specific  performance  of 
an  agreement  to  purchase.  Exception  to  the  report  in  favor  of  the 
title,  that  the  persons  entitled  to  the  purchase-money,  subject  to 
debts,  legacies,  and  other  charges,  were  not  parties  to  the  suit. 

1  Roberts  v.  Marchant,   1   Phill.  370,  2  Morfran  v.  Morjxan,  2  Wlicat.  290. 

373.  3  Burger  v.  Potter,  32  111.  m. 


568  LAW   OF   VENDORS    AND    PURCHASERS.     [CHAP.  XXXVII. 

The  Lord  Chancellor  was  of  opinion  that  they  ought  not  to  be  par- 
ties to  the  conveyance  ;  and,  if  they  were,  their  covenant  ought  to 
extend  only  to  their  own  acts  and  those  of  the  devisor ;  not  to  a 
general  warranty,  without  a  special  contract  for  it ;  but,  as  the 
point  must  come  properly  upon  objections  to  the  conveyance,  the 
exception  was  overruled  upon  the  form.  He  also  held,  that  it  was 
not  matter  of  exception  to  the  report  in  favor  of  the  title,  that  the 
heir  of  the  devisor  was  not  a  party  to  tlie  suit.  Lord  Lough- 
borough says,  "  The  scope  of  the  exception  is,  that  these  persons 
are  not  made  parties  to  the  suit.  That  comes  a  great  deal  too  late 
in  the  cause  ;  and  was  an  objection  to  be  made  at  the  hearing.  It 
then  supports  itself  by  certain  hints  of  objections,  which  are  not 
made  a  substantive  ground  of  exception.  I  cannot  allow  this 
without  laying  down  as  a  general  proposition,  that  all  persons  in- 
terested in  the  money  to  arise  from  the  sale  ought  to  be  parties  to 
the  contract."  ^ 

11.  To  a  bill  against  a  vendor  for  specific  performance,  his  stew- 
ards and  receivers  ought  not  to  be  made  parties.  And,  specific 
performance  being  decreed,  the  bill  as  against  them  was  dismissed 
with  costs. 2 

12.  The  plaintiff  agreed  to  sell  to  the  defendant  a  piece  of  land 
in  the  occupation  of  his  tenant,  and  to  buy  up  the  tenant's  inter- 
est. The  defendant  having  entered  before  payment  of  his  pur- 
chase-money, the  plaintiff  and  his  tenant  served  him  with  notices 
not  to  trespass  ;  and  afterwards  the  plaintiff  filed  a  bill  against  the 
defendant  for  specific  performance  and  to  restrain  the  trespass. 
Held,  the  tenant  was  not  a  necessary  party  to  the  suit.^ 

13.  When  a  bill  for  specific  performance  is  filed,  by  a  person 
who  has  contracted  to  purchase  the  absolute  legal  and  equitable 
interest  in  a  mortgaged  estate,  from  the  supposed  owner  of  the 
equity  of  redemption  neither  the  mortgagee,  nor  a  person  who 
claims  an  interest  in  the  equity  of  redemption,  but  has  not  joined 
in  the  contract,  can  be  made  a  defendant ;  although  the  mortgagee 
does  not  object  to  being  made  a  party,  but  requires  the  sanction  of 
such  claimant  before  joining  in  the  conveyance.* 

14.  The  general  rule,  that  an  action  lies  only  against  a  party  to 
the  contract,  is  sometimes  held  inapplicable  to  one  having  notice  of 
such  contract. 

1  Wakeman  v.  Rutland,  3  Ves.  233,  3  Robertson  v.  Great  "Western,  &c.  10 
234 ;  8  Bro.  P.C.  145.                                        Sim.  314. 

2  McNamara  v.  Williams,  6  Ves.  148.  *  Tasker  v.  Small,  3  Myl.  &  Cra.  63. 


CHAP.    XXXVII.]  PARTIES   TO    ACTIONS.  569 

15.  Bill  for  specific  performance  of  a  contract  to  sell.  Two 
persons  held  land  in  common.  One,  professing  to  act  for  both, 
contracted  by  deed,  signed  by  himself  alone,  to  sell  a  small  part  of 
it  to  the  plaintiff,  but  the  other  owner  refused  to  sell.  Afterwards, 
the  two  conveyed  the  whole  to  the  defendant,  who  knew  of  the 
contract.  Decree  for  the  plaintiff.  The  Court  say,  "  The  appellee 
took  possession  of  the  lot  of  land  purchased  by  him,  and  made  use 
of  it  in  the  mode  contemplated  when  he  purchased  by  opening  a 
race  through  it.  It  was  said  in  Robinett  v.  Preston,^  that  although 
a  conveyance  by  one  joint  tenant  of  a  part  of  tiie  land  might  have 
no  legal  effect  to  the  prejudice  of  the  co-tenant,  yet  it  would  be 
effectual  to  pass  the  interest  of  the  grantor  in  the  tract.  And  if, 
upon  partition,  the  share  assigned  to  the  co-tenant  did  not  include 
the  part  conveyed,  the  co-tenant  would  get  all  he  was  entitled  to, 
and  the  grantor  could  not  deny  his  deed.  If,  upon  a  partition,  that 
part  of  the  land  described  by  this  deed  or  affected  by  the  water 
privileges,  had  been  assigned  to  John  T.  McKee,  he  would  have 
been  in  a  condition  to  have  executed  his  contract,  if  he  would  not, 
in  that  event,  have  been  estopped  by  his  deed  from  disturbing  his 
vendee  ;  and  his  son  claiming  under  his  subsequent  conveyance 
with  full  notice,  can  occupy  no  higher  ground."  ^ 

16.  Where  a  contract  is  entered  into  for  the  purchase  of  an  es- 
tate by  certain  persons  in  their  own  names,  but  in  fact  on  their  own 
account,  and  also  as  agents  for  other  parties,  a  bill  to  rescind  the 
contract  may  be  filed  in  the  names  of  the  agents  and  the  other 
parties.  And,  where  the  partners  in  a  company  or  partnersliip  are 
numerous,  such  bill  may  be  filed  by  some  of  the  partners,  on  be- 
half of  themselves  and  the  others,  if  it  is  manifestly  for  the  benefit 
of  all  that  the  contract  should  be  rescinded.^ 

17.  The  plaintiffs,  being  interested  in  certain  lands,  but  having 
no  common  legal  interest  in  any  portion  of  them,  agreed  together 
to  put  them  up  for  sale,  according  to  their  respective  interests,  and 
the  lands  were  so  put  up,  under  the  direction  of  tiieir  agent,  in 
lots.  Each  lot  was  described  in  a  separate  paper,  containing  the 
conditions  of  sale,  in  which  it  was  stipulated  that  "  the  vendors  " 
should  deliver  an  abstract  of  title  ;  that  the  conveyances  should  be 
executed,  and  the  whole  purchase-money  paid,  on  a  certain  day, 


1  2  Rob.  R.  277.  3  Small  v.  Atwood,  Younge,  407. 

2  McKee  v.  Barley,  11  Gratt.  340,  346. 


570  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.  XXXVII. 

from  wliicli  time  the  purchaser  should  have  possession  ;  and  that, 
if  the  purchaser  should  be  let  into  possession  before  payment  of 
the  purchase-money,  he  should  be  considered  tenant  at  will  to  the 
vendors,  and  pay  interest  at  the  rate  of  4  per  cent  on  tlie  amount 
of  purchase-money,  as  and  for  rent.  The  defendant  bought  four 
of  the  lots  under  the  above  conditions,  two  by  auction,  and  two  by 
private  contract.  No  abstract  of  title  was  delivered ;  but  the  de- 
fendant was  let  into  possession,  and  held  for  several  years,  not 
paying  the  purchase-money,  and  having  notice  of  the  arrangement 
entered  into  by  the  plaintiffs  for  the  sale.  Held,  the  plaintiffs 
could  not  jointly  sue,  upon  an  implied  contract  by  the  defendant, 
to  waive  the  delivery  of  an  abstract,  and  perform  the  condition  for 
payment  of  4  per  cent  interest  as  rent.  Also,  that  the  plaintiffs 
could  not  recover  the  4  per  cent  in  a  joint  action  for  use  and  occu- 
pation. Lord  Denman,  C.J.,  says,  "  The  undertaking  relied  upon 
must  result  either  from  the  original  contract  of  sale,  or  from  a 
joint  ownership  in  the  plaintiffs  and  occupation  under  them.  But 
the  contract  proved  does  not  support  the  action,  and  there  is  no 
joint  ownership  proved."  Littledale,  J.,  says,  "The  remedy  was 
to  be  sought  in  equity"  (for  payment  of  the  4  per  cent  interest). 
"  As  to  the  count  for  use  and  occupation,  the  eighth  condition, 
under  which  the  defendant  is  said  to  have  occupied,  supposes  that 
the  vendors  shall  have  performed  their  part  of  the  previous  con- 
tract, and  provides  for  the  case  of  default  made  by  the  purchaser, 
after  such  performance.  The  law  would  not  imply  that  the  vendee 
had  subjected  himself  to  such  a  condition  by  being  let  into  posses- 
sion while  the  title  remained  uncertain.  And  supposing  that  the 
defendant  under  the  circumstances  had  agreed  to  be  bound  by  the 
eighth  condition,  the  action  ought  not  to  have  been  for  use  and 
occupation  ;  the  declaration  should  have  been  special  on  the  con- 
tract to  pay  4  per  cent."  ^ 

18.  A  husband  may  recover  back  money  laid  out  by  his  wife  in 
the  purchase  of  lands,  unless  he  was  privy  to  her  bargain  or  con- 
sented to  it.  Holt,  C.J.,  says,  "  If  articles  of  agreement  are  made 
by  2ifeme  covert  by  the  order  and  appointment  of  her  husband,  and 
the  money  is  paid  by  the  wife  in  pursuance  of  such  agreement ;  or 
if  the  husband  (though  not  privy  at  the  time  of  the  purchase) 
afterwards  consents  to  it,  the  property  of  the  money  is  altered,  and 

1  Seaton  v.  Booth,  4  Ad.  &  Ell.  528,  534,  551. 


CHAP.    XXXVII.]  PARTIES   TO    ACTIONS.  571 

the  husband  cannot  maintahi  trover.  But  if  he  is  not  privy  to  such 
purchase,  nor  agrees  to  it,  trover  will  not  lie  for  him  against  the 
vendor,  who  receives  his  money  of  his  wife."  ^ 

1  Garbrand  v.  Allen,  1  Ld.  Raym.  224.     See  p.  55. 


572  LAW   OF   VENDORS   AND   PURCHASERS.     [CHAP.  XXXVIII. 


CHAPTER    XXXVIII. 


PLEADING. 


1.  General  remark.  13.     Pleading,  as  affecting  damages. 

2.  Allegation  of  performance  in  case  of  14.  In  suit  against  a  purchaser  or  adverse 
a  dependent  contract.  claimant. 

8.     Demand  of  specification.  22.     In  case  of  illegality  and  fraud. 

1.  The  allegations  required  by  law  from  the  respective  parties,  in 
suits  relating  to  the  sale  and  purchase  of  land,  have  of  course  been 
incidentally  referred  to,  in  treating  of  their  mutual  rights  and  ob- 
ligations ;  pleading  being  in  truth  nothing  more  than  a  statement 
upon  the  record  of  those  reciprocal  agreements  and  relations 
which  constitute  the  claims  of  such  parties  on  the  one  side,  and 
the  defences  against  such  claims  on  the  other.  Only  a  brief  ad- 
ditional notice  of  the  subject  is  required  in  the  present  connec- 
tion. 

2.  As  has  been  seen  (chaps.  12,  14,  15),  the  question  is  often 
raised,  how  far  performance  on  one  side  is  a  condition  precedent  to 
a  suit  for  non-performance  on  the  other ;  as  also,  how  far  a  tender, 
or  offer,  or  mere  readiness,  is  equivalent,  for  this  purpose,  to  actual 
performance.  The  authorities  upon  these  points  are  somewhat 
contradictory,  and  it  is  difficult  to  draw  from  them  any  general 
rule,  not  liable  to  be  modified  by  the  circumstances  of  each  par- 
ticular case.  We  propose  to  refer,  in  this  connection,  only  to 
those  cases  in  which  these  questions  arose  directly  upon  the 
pleadings. 

3.  In  West  v.  Emmons,^  the  defendant  covenanted  to  execute  to 
the  plaintiff,  on  or  before  a  specified  day,  a  deed  of  certain  land, 
and  the  plaintiff  covenanted  that,  upon  execution  of  the  deed,  he 
would  secure  the  purchase-money  by  his  bond,  and  a  mortgage 
upon  the  premises.  The  purchaser  sued  the  vendor  for  not  con- 
veying according  to  his  agreement,  and  averred  his  readiness  to 
execute  the  bond  and  mortgage,  and  that  although  he  had,  at  the 
time  specified  in  the  agreement,  requested  the  defendant  to  execute 

1  5  Johns.  179. 


CHAP.    XXXVIII.]  PLEADING.  573 

the  deed,  he  had  not  done  so.  Upon  demurrer  to  the  declaration, 
it  was  held,  that  the  averment  of  the  plaintiff's  readiness  to  per- 
form on  his  part,  and  that  the  defendant  was  requested  to  execute 
the  deed  and  had  refused,  was  all  that  was  necessary  to  maintain 
the  action. (a) 

4.  But  a  somewhat  different  doctrine  has  been  held  in  other 
cases. 

5.  In  an  agreement  for  the  sale  and  purchase  of  land,  it  was 
stipulated  that  |500  of  the  price  should  be  paid  in  cash,  $500  by 
a  note  at  ninety  days  with  approved  indorsement,  and  the  residue 
secured  by  bond  and  mortgage.  Held,  the  agreement  was  to  be 
executed  on  both  sides  at  the  same  time,  and  neither  party  could 
maintain  an  action  without  showing  performance,  or  an  offer  to 
perform,  on  his  part.  An  averment  of  readiness  to  perform  is  not 
sufficient.  Harris,  J.,  says,  "  Tiie  plaintiff  says  he  was  ready  and 
willing  to  fulfil  his  obligations  by  virtue  of  tlie  instrument.  As- 
suming that  this  is  a  sufficient  averment  of  the  fact  that,  at  the 
day  specified,  he  was  ready  and  willing  to  pay  for  the  property  to 
be  conveyed,  according  to  the  terms  of  his  agreement,  which  is 
certainly  quite  as  much  as  the  plaintiff  can  claim  for  his  allega- 
tion, there  is  no  averment  that  he  offered  to  perform  the  agree- 


(a)  The  same  principle  is  illustrated  by  and  to  have  paid  the  stipulated  price  for 

some  cases  relating  to  personal  property.  them,  which  is  all  that  he  was  bound  to 

In  Callonel  v.  Briggs,  1  Salk.  102,  "the  do,  and  that  nobody  was  there  on  the  part 

agreement  was,  that  tlie  defendant  should  of  the  defendant,  or  that  the  goods  were 

pay  so  much  money,  six  months  after  the  not  there  ready  to  be  delivered  ;  would  it 

bargain,  the  plaintiff  transferring  stock,  be  any  answer  to  say  tiiat  he  ought  to 

The  plaintiff  at  the  same  time  gave  a  note  have  pleaded  a  tender  of  the  money  ?  Now 

to  the  defendant  to  transfer  the  stock,  the  this  case  is  the  same  in  eflect ;  the  defend- 

defendant  paying,  &c.     Holt,  C.J.,  says,  ant  undertook  to  deliver  the  malt  when 

"  If   either    party   would  sue   upon   this  he  should  be  requested,  and  the  plaintiffs 

agreement,  the  plaintiff  for  not  paying,  or  plead  that  they  made  the  request  to  liini, 

the  defendant  for  not  transferring,  the  one  and  were  ready  and  willing  to  have  ac- 

must  aver  and  prove  a  transfer  or  a  ten-  cepted  and  paid  for  it,  but  that  he  did  not 

der,  and  the  other  a  payment  or  a  tender."  deliver  it  when  requested,  or  at  any  other 

In  Rawson  v.  Johnson,  1  E.  208,  Lord  time,  but  refused  so  to  do.  To  be  sure, 
Kenyon  goes  into  a  consideration  of  the  under  this  covenant  the  plaintiffs  must 
former  cases,  and  remarks  as  follows :  have  proved  that  they  were  prepared  to 
"  One  man  agrees  to  do  a  certain  act  in  tender  and  pay  the  money  if  the  defend- 
consideration  of  another  man  doing  an-  ant  had  been  ready  to  have  received  it  and 
other  act ;  the  acts  are  to  be  done  at  the  to  have  delivered  the  goods  ;  but  it  can- 
same  time  and  place  ;  one  of  the  parties  not  be  necessary  in  order  to  entitle  them 
goes  there  intending  to  do  his  part,  and  to  maintain  their  action  that  they  should 
the  other  stays  away  altogether ;  tlie  for-  have  gone  through  the  useless  ceremony 
mer  is  obliged  to  bring  his  action  for  this  of  laying  the  money  down  in  order  to 
breach  of  the  agreement,  and  he  pleads  take  it  uj)  again."  See  Tinnej'  v.  Ashley, 
according  to  the  truth  of  the  fact,  that  he  15  Pick.  552  ;  Thayer  v.  Turner,  8  Met. 
was  at  the  time  and  place  appointed,  550;  Thornton  v.  Wyman,  12  Wheat, 
ready  to  have  received  the  other's  goods  189. 


674  LAW    OF    VENDORS   AND    PURCHASERS.     [CHAP.  XXXVIII. 

ment  on  his  part,  or  that  he  requested  South  wick  to  convey ;  or 
that  he  gave  him  notice  of  his  readiness  to  perform."  ^ 

6.  In  PhiUips  v.  Fielding,^  Lord  Loughborough,  after  censuring 
in  very  strong  terms  the  length  of  the  declaration,  held  that  it 
was  clearly  bad,  on  both  the  grounds  insisted  on  in  the  argument ; 
first,  because  the  plaintiff  had  not  distinctly  averred  a  sufficient 
performance  of  his  part  of  the  agreement,  by  stating  an  actual 
surrender  to  the  defendant  or  a  tender  and  refusal ;  and  secondly, 
because  he  had  not  shown  what  title  he  had  to  the  estate ;  for 
whatever  his  interest  was,  it  ought  to  have  been  specially  set 
forth.  Gould,  J.,  was  of  the  same  opinion.  (He  remembered  the 
case  of  an  indictment  for  forgery,  in  which  there  were  three  counts 
for  the  forgery,  and  three  for  the  utterance ;  in  the  first  count  the 
prisoner  was  particularly  described,  and  the  Grand  Jury  having 
rejected  the  three  first  counts,  an  objection  was  raised,  that  the 
remaining  counts  described  him  "  the  said  A.  B."  by  reference  to 
the  first ;  but  all  the  judges  held,  that  the  description  was  good, 
and  that  the  latter  counts  might  refer  to  the  former.  So  in  the 
present  case,  the  declaration  which  was  swelled  to  a  very  im- 
proper and  unnecessar}'  length,  might  have  referred  generally  to 
the  conditions  of  sale  set  forth  in  the  first  count,  without  repeating 
them  over  again  in  the  subsequent  counts.) 

7.  Sale  by  auction  of  a  copyhold  estate.  It  was  stipulated,  that 
the  purchaser  should  pay  down  a  deposit,  and  sign  an  agreement 
for  payment  of  the  remainder  of  the  purchase-money  at  a  certain 
time,  on  having  a  good  title,  and  have  a  proper  surrender  of  the 
estate,  on  such  payment.  In  an  action  brought  by  the  seller,  for 
the  non-performance  of  the  conditions,  held  not  sufficient  to  state, 
that  the  plaintiff  had  been  always  ready  and  willing,  and  frequently 
offered,  to  make  a  good  title,  and  to  make  a  proper  surrender  on 
payment  of  the  purchase-money ;  but  it  should  be  averred,  that 
the  seller  actually -made  a  good  title,  and  surrendered  the  estate, 
or  that  there  was  a  tender  and  refusal,  and  also  what  title  the 
seller  had.^ 

8.  Questions  have  sometimes  arisen,  as  to  the  right  of  one  party 
to  the  suit  to  call  for  a  more  specific  statement  of  the  claim  set 
up  by  the  other. 

1  Van  Schaick  v.  Winne,  16  Barb.  89-  »  PhilUps  v.  Fielding,  2  H.  Blackst. 
93.  123. 

2  2  H.  Bl.  131. 


CHAP,  xxxyiil]  pleading.  575 

9.  Tims  it  was  held,  that  the  Court  will  not  compel  a  plaintiir, 
suing  for  the  breach  of  an  agreement,  and  assigning  by  way  of 
special  damage  that  he  has  incurred  certain  expenses,  to  furnish 
particulars  of  such  special  damage.^ 

10.  In  an  action  for  money  had  and  received  by  the  purchaser 
against  the  vendor  to  recover  the  deposit,  the  conditions  of  sale 
not  being  complied  with ;  the  defendant,  by  a  judge's  order,  may 
obtain  a  particular  of  the  grounds  of  action  to  which  the  plaintiff 
will  be  confined  at  the  trial.  ]>ut,  if  there  has  been  no  particular, 
the  plaintiff  may  rely  upon  a  breach  never  before  mentioned  to  the 
defendant.^ 

11.  In  assumpsit  for  the  breach  of  an  agreement  to  sell  an 
estate,  the  Court  refused  to  allow  the  defendant  to  select  certain 
of  several  allegations  of  damage  contained  in  a  single  count,  and 
pay  money  into  court  on  those  particular  allegations,  the  whole 
count  taken  together  being  in  substance  a  demand  of  unliquidated 
damages.  It  was  said,  as  the  seller  had  broken  his  contract,  the 
Court  would  not  help  him  so  as  to  compel  the  plaintiff  to  go  to 
trial  at  his  own  risk.'^ 

12.  In  assumpsit  upon  a  contract  for  the  sale  of  a  house,  with 
counts  to  recover  back  the  deposit,  the  plaintiff,  having  in  his  first 
count  alleged  that  the  defendant,  who  was  to  make  a  good  title, 
had  delivered  an  abstract  which  was  "  insufficient,  defective,  and 
objectionable ;  "  the  Court  obliged  the  plaintiff  to  give  a  particular 
of  all  objections  to  the  abstract  arising  upon  matters  of  fact.*  So, 
in  an  action  for  money  had  and  received,  brought  to  recover  back 
the  deposit  paid  to  the  auctioneer  upon  the  sale  of  an  estate,  on 
the  ground  of  objections  to  the  title,  the  defendant  is  entitled  to 
particulars  of  the  objections  arising  upon  matters  of  fact,  but  not 
of  objections  in  point  of  law.  The  latter,  as  Mr.  Baron  Parke 
observed,  "  must  find  out  themselves."  ^ 

13.  The  allegations  in  the  declaration  may  determine  the 
amount  of  damages  to  be  recovered  by  the  plaintiff.  Thus,  in  an 
action  by  a  purchaser  against  the  vendor,  the  declaration  stated, 
that  by  articles  the  defendant,  in  consideration  of  £2,115,  agreed 
that  he  would,  on  or  before  the  twenty-fifth  day  of  March  next, 
well  and  effectually  convey  the  estate  to  the  plaintiff,  &c.,  with  a 

1  Retallick  v.  Hawkes,  1  Mees.  &  *  Collett  v.  Thompson,  3  Bos.  &  Pull. 
Wels.  573.  246. 

2  Squire  v.  Tod,  1  Camp.  Cas.  293.  5  Roberts    v.    Rowlands,    3    Mees.   & 

3  Hodges  V.  Litchfield,  9  Bing.  713.  Wels.  543. 


576  LAW    OF   VENDORS    AND    PURCHASERS.     [CHAP,  XXXVIII. 

good  title ;  and  the  plaintiff  agreed,  that  on  the  said  twenty-fifth 
day  of  March,  on  having  such  conveyance,  he  would  pay  the 
defendant  the  purchase-money ;  and,  in  case  the  purcliase  sliould 
not  be  completed  on  that  day,  would  pay  interest  on  the  purchase- 
money  before  it  was  completed.  Breach,  that,  although  the  plain- 
tiff was  always,  from  the  making  the  agreement  until  and  upon 
the  said  twenty-fifth  day  of  March,  ready  and  willing  to  accept  a 
conveyance  and  to  pay  the  purchase-money,  whereof  the  defendant 
had  notice,  &g.,  yet  the  defendant  did  not  on  the  day  and  year 
last  aforesaid,  or  at  any  other  time  whatsoever,  make  a  good  title 
to  the  plaintiff  of  the  estate,  nor  had  he  at  any  time  any  such 
title,  &c. ;  alleging  damage  by  expenses  incurred  in  investigating 
the  title,  and  loss  of  interest  on  the  purchase-money  while  lying  at 
a  banker's.  Held,  that,  upon  this  declaration,  time  was  clearly 
of  the  essence  of  the  contract ;  that  the  plaintiff  was  under  no 
necessity  of  keeping  his  money  at  the  banker's  after  the  25th  of 
March ;  and  that  the  plaintiff  could  not  recover  for  any  expenses 
or  loss  of  interest  subsequent  to  that  time.^ 

14.  A  suit  in  equity,  between  a  vendee  and  an  adverse  claimant 
of  the  land  sold,  often  gives  rise  to  questions  as  to  the  form  of 
pleading  the  vendor's  title.  Upon  this  subject  it  is  held,  that  the 
plea  of  a  purchase  for  valuable  consideration  must  allege  seisin 
and  possession  in  tlie  vendor.^  So  a  plea  of  title  derived  from 
one  having  only  a  particular  estate,  and  not  in  possession,  must 
set  out  how  the  person  became  entitled.^ 

15.  To  a  bill  brought  by  an  heir,  the  defendant  pleaded,  that 
he  was  a  purchaser  for  valuable  consideration.  Held  bad,  because 
he  did  not  plead  a  purchase  from  one  of  the  plaintiff's  ancestors ; 
and  a  pvirchase  from  a  stranger,  who  might  have  no  title,  was 
held  no  good  plea,  and  the  defendant  was  ordered  to  answer.* 

16.  A  plea  of  a  bare  title  only,  without  setting  forth  any  con- 
sideration, will  not  protect  a  defendanjt  from  giving  an  answer  to 
the  title  set  up  by  the  plaintiff.^ 

17.  Wliere  a  defendant,  by  his  answer,  insists  that  he  is  a  pur- 
chaser for  valuable  consideration,  and  without  notice,  proof  of 
payment  of  the  purchase-money  is  an  essential  part  of  the  defence  ; 
and,  if  the  defendant  fails  at  the  hearing  to  prove  this,  the  Court 

1  Metcalfe  v.  Fowler,  6  Mees.  &  W.  *  Seymour  v.  Nosworth,  2  Freem. 
830,  834.  128 ;  5  Ch.  R.  23 ;  Nelson,  Ch.  R.  135. 

2  Trevanian  v.  Mosse,  1  Vern.  246.  ^  Brereton  v.  Gamul,  2  Atk.  241. 

3  Hughes  V.  Garth,  Ambl.  421. 


CHAP.    XXXVIII.]  PLEADING.  577 

will  not  allow  the  cause  to  stand  over,  in  order  to  supply  such 
defect.^ 

18.  Plea  to  a  bill  for  possession,  a  purchase  for  a  valuable  con- 
sideration, and  that  the  money  was  bond  fide  secured  to  be  paid. 
Held,  that,  being  only  secured,  it  might  never  be  paid,  and  the 
plea  was  therefore  overruled.^ 

19.  A  purchaser,  if  he  denies  notice,  need  only  set  forth  the 
purchase-deed,  and  plead  his  purchase  in  bar  to  the  discovery  of 
the  title-deeds.^ 

20.  On  a  plea  of  purchase  for  valuable  consideration,  without 
notice  of  the  plaintiff's  title,  it  is  sufficient  to  aver,  that  the  person 
who  conveyed  was  seised,  or  pretended  to  be  seised,  when  he  exe- 
cuted the  purchase-deeds ;  but,  where  a  purchaser  sets  up  a  fine 
and  non-claim  as  a  bar,  he  must  aver  that  the  seller  was  actually 
seised.^ 

21.  A  defendant  cannot,  by  ansiver,  protect  himself  from  an- 
swering fully,  on  the  ground  of  his  being  a  purchaser  for  valuable 
consideration.^ 

22.  Questions  of  pleading  have  arisen  in  connection  with  alleged 
illegality  and  fraud. 

22  a.  To  a  declaration  in  covenant  the  defendant  pleaded,  that, 
before  making  the  covenant,  it  was  unlawfully  agreed  between  the 
plaintiff  and  defendant,  that  the  plaintiff  should  sell  and  convey  to 
the  defendant  land,  at  a  certain  price,  for  the  purpose  (as  the 
plaintiff  then  well  knew)  that  the  said  land  should  be  exposed  to 
sale  by  lottery,  contrary  to  the  12  Geo.  II.,  c.  28 ;  that  afterwards, 
in  pursuance  of  the  said  illegal  agreement,  the  said  land  was  sold 
and  transferred  to  the  defendant,  and,  a  part  of  the  purchase- 
money  being  unpaid,  the  defendant,  to  secure  the  payment  thereof 
to  the  plaintiff,  entered  into  the  covenant  declared  upon.  Issue 
having  been  taken  on  this  plea  and  found  for  the  defendant,  it 
was  held,  after  verdict,  that  the  plea  disclosed  no  answer  to  the 
action,  as  it  did  not  show  that  the  covenant  was  entered  into  for 
the  purpose  of  carrying  out  the  prior  illegal  ol)Ject,  or  in  pursuance 
of  the  illegal  contract.  Lord  Campbell,  C.J.,  says,  "  Tlie  plea 
discloses  nothing  wliicli  shows  that  the  deed  or  covenant  is  illegal. 

1  Molony  v.  Kernan,  2  Dru.  &  War.  v.  Egerton,  3  P.  Wins.  279 ;  Jackson  v. 
31.  Roe,  4  Russ.  514. 

2  Hardingham  v.  Nicliolls,  3  Atk.  304.  5  Qvey   v.    Leighton,  2   Sim.   &    Stu. 

3  Aston  V.  Aston,  3  Atk.  302.  234  ;    Portarlington   v.    Soul  by,    0    Sim. 

4  Story  V.  Windsor,  2  Atk.  630 ;  Head  356. 

37 


578  LAW   OF   VENDORS   AND    PURCHASERS.     [CHAP.  XXXVIII. 

We  must  take  it  that  after  the  transfer  of  the  premises  had  been 
completed,  there  was  a  new  agreement  come  to  between  the  par- 
ties, under  which  tlie  defendant  gave  this  security  for  part  of  the 
purchase-money.  In  that  I  see  no  illegality ;  it  is  not  against 
either  of  the  statutes,  nor  is  it  for  the  purpose  of  carrying  on  a 
lottery.  For  aught  that  appears,  the  illegal  purpose  may  have 
been  abandoned,  and  the  defendant,  being  in  possession  of  the 
premises  and  using  them  for  a  perfectly  lawful  purpose,  may  have 
thought  himself  bound  to  pay  the  price,  and  therefore  entered  into 
this  covenant.  There  is  no  infraction  of  the  statutes  or  of  the 
rules  of  morality  in  this.  Where  a  security  is  given  for  the  price 
of  that  which  is  absolutely  illegal,  as  for  a  murder,  although  given 
after  the  crime  has  been  committed,  it  would  no  doubt  be  bad, 
because  there  would  be  no  consideration  of  any  kind  to  support  it. 
But  here  there  is  a  good  moral  consideration  that  the  vendor 
should  receive  the  recompense  stipulated  for."  ^ 

23.  The  declaration  stated,  tliat  one  B.  had  agreed  with  the 
plaintiff  for  the  purchase  of  the  lease  and  good-will  of  a  public 
house  ;  that,  before  and  at  the  time  of  making  the  agreement,  the 
defendant  falsely,  fraudulently,  and  deceitfully  represented  to  B., 
that  the  trade  of  the  house  was  of  a  certain  extent ;  that  B. 
had  not  been  able  to  complete  the  purchase,  and  it  was  afterwards 
agreed  between  the  plaintiff,  B.,  and  the  defendant,  that  the 
plaintiff  should  become  the  purchaser  in  the  room  of  B-.,  and 
at  and  before  the  making  of  the  last-mentioned  agreement,  B. 
communicated  to  the  plaintiff  the  representation  the  defendant 
had  made  to  him ;  of  all  ivliich  the  defendant  then  had  notice ;  that 
the  plaintiff,  confiding  in  the  representation  so  made  by  the  defend- 
ant, agreed  to  become  the  purchaser,  and  paid  the  purchase-money ; 
that  the  representation  was  false,  as  the  defendant  well  knew ; 
and  that  the  plaintiff  sustained  damage.  The  defendant  pleaded, 
that  he  did  not  authorize  B.  to  communicate  to  the  plaintiff  the 
representation  he,  the  defendant,  had  made  to  B.  Held,  that  the 
declaration  disclosed  a  good  cause  of  action,  and  that  the  plea  was 
no  answer  to  it.  Tindal,  C.J.,  says,  in  substance,  as  to  the 
declaration,  "  The  plaintiff  took  upon  himself  the  fulfilment 
of  Bowmer's  contract  in  all  its  parts.  Bowmer  had  contracted 
and  agreed  with  the  defendant  for  the  purchase  of  the  lease  and 
good-will   of  the   premises   for  the  sum  of  Xl,175,  and,  being 

1  Fisher  v.  Bridges,  18  Eng.  Law  &  Eq.  358,  361. 


CHAP.    XXXVIII.]  PLEADING.  579 

unable  to  complete  the  purchase,  it  was  agreed  that  the  plaintiff 
should  become  the  purchaser  in  the  room  and  stead  of  Bownier.  I 
can  only  understand  this  as  a  transferring  to  the  j)laintiff  of  the 
contract  of  Bowmcr,  with  its  price  and  all  other  incidents.  The 
defendant,  after  he  has  had  notice  that  the  misrc])resentation  he 
made  to  Bowmer  has  been  communicated  by  him  to  the  plaintiff, 
permits  the  latter  to  go  on  with  the  contract,  takes  his  money,  and 
executes  a  conveyance  of  the  premises  to  him.  The  defendant's 
motive  would  be  the  same  whether  one  party  or  the  other  became 
eventually  the  purchaser  ;  the  means  employed  would  be  the  same, 
the  end  the  same,  —  the  obtaining  for  the  house  a  larger  sum 
of  money  than  he  was  conscious  it  was  worth."  ^  Yaughan,  J., 
says,  "  The  defendant  has  been  guilty  of  a  fraud,  from  which  has 
resulted  a  damage  to  the  plaintiff,  and  these  are  sufficiently 
averred,  and  I  can  hardly  conceive  a  grosser  fraud  than  that 
disclosed  upon  this  declaration."  Coltman,  J.,  says,  "The  only 
doubt  that  has  suggested  itself  to  me  has  been  whether  the  mere 
general  averment  of  notice,  without  a  specific  averment  that 
the  defendant  knew  or  supposed  the  plaintiff  to  have  been  acting 
upon  the  faith  of  the  representation  made  by  him,  would  suffice. 
But,  upon  consideration,  I  think  it  must  be  assumed  that  he 
had  such  knowledge."  ^ 

1  Ace.  Langridge  v.  Leroy,  2  Mees.  &         2  Pilmore  v.  Hood,  6  Scott,  827,  838, 
W.  532;  Hill  v.  Gray,  1  Stark.  434.  839,  840,  841. 


580  LAW   OF  VENDORS   AND   PURCHASERS.      [CHAP.  XXXIX. 


CHAPTER   XXXIX. 


SALES  BY  ORDER  OF  COURT. 


1.     General  jurisdiction  of  equity.  7.     Sales  at  auction;  when  voidable. 

lb.  Caveat  emptor,  whether  applicable.  9  a.  Irregularities  in  the  order  of  sale;  re- 

3.     Necessity  of  confirmation ;  efl'ect  of  a  scinding  of  sale, 

decree.  31.     Aliscellaneous  points. 

1.  Courts  of  Equity  have  a  general  supervision  over  sales  de- 
creed by  them,  to  be  exercised  by  bill,  petition,  or  motion. ^ 

1  a.  The  purchaser  of  property,  sold  under  a  decree  of  chancery, 
becomes  a  quasi  party  to  the  cause,  so  far  as  relates  to  the  rights  and 
duties  properly  appertaining  to  such  purchase.  Hence,  if  he  fails 
to  pay  the  purchase-money,  or  any  part  of  it,  when  due,  the  Court 
may,  on  motion  and  without  notice,  enter  judgment  and  award 
execution  against  him  for  that  amount.^ 

1  h.  It  has  been  sometimes  held,  that  to  all  sales  under  the 
orders  and  decrees  of  the  Court  of  Chancery(a)  the  rule  caveat 
emptor  is  to  be  applied.^     (See  p.  584.) 

2.  But,  on  the  other  hand,  this  rule  has  been  held  not  to  apply 
to  sales  by  the  Master  in  Chancery ;  for,  he  being  the  agent  of  the 
parties  for  whose  benefit  the  sale  was  made,  they  are  as  much 
bound  by  his  representations  as  they  would  have  been  by  their 
own.  Thus,  where  a  tract  of  land  has  been  sold  by  the  Master  in 
Equity,  and  represented  upon  a  map  as  containing  more  acres  than 
it  was  discovered  upon  a  resurvey  to  have,  an  abatement  will 
be  allowed  for  the  deficiency  in  the  qviantity,  according  to  the 
nature  and  extent  of  the  defect.* 

3.  A  contract  of  sale,  made  between  the  Court  as  the  vendor, 

1  Coffey  V.  Coffey,  16  111.  141.  »  Anderson  v.  Foulke,  2  Harr.  &  Gill, 

'!■  Blackmore  v.  Barker,  2  Swan,  340.        346 ;  Farmers',  &c.  v.  Martin,  7  Md.  342. 

4  Tunno  v.  Flood,  1  M'Cord,  121. 

(a)  A  contract  to  make  title  to  real  es-  by  judicial  sale,  provided  it  did  not  sell  at 

tateby  a  judicial  sale  contemplates  no  time  more  than  a  certain  sum,  is  not  cancelled 

for  its  completion   inconsistent  with  the  by  a  sale  at  a  higher  price,  provided  the 

due   course   of   the   process   of  the   law.  bid  is  not  made  good,  and  the  property 

Moorhead  v.  Gibson,  3  Grant,  157.  returned  unsold  for  want  of  buyers.   Ibid. 

A  contract  to  make  title  to  real  estate 


CHAP.  XXXIX.]      SALES  BY  ORDER  OF  COURT.  581 

tlirough  the  agency  of  a  trustee,  and  the  purchaser,  is  never 
regarded  as  consummated,  until  it  has  received  the  sanction  and 
ratification  of  the  Court.^  So  tlie  sale  of  land  by  the  Master, 
under  a  chancery  decree,  is  not  complete,  till  confirmation  of  his 
report  of  the  sale.  Before  such  confirmation ;  on  petition  of  a 
creditor,  i)roof  of  sale  at  an  undervalue  for  the  benefit  of  the 
debtor,  and  an  agreement  by  the  creditor  to  make  a  reasonable 
advance  upon  the  sum  bid ;  the  Court  may  open  the  biddings.^ 
3  a.  And  a  confirmation  may  be  recalled  or  modified  upon  suffi- 
cient cause  shown.  Thus  under  a  license,  on  petition,  to  sell  172 
acres  owned  in  common,  in  part  by  married  women  and  infants,  for 
division,  the  sale  took  place  and  was  confirmed,  and  the  last  pay- 
ment made,  but  afterwards,  prior  to  the  final  decree,  it  was  dis- 
covered that  the  tract  contained  about  twenty  acres  more  than 
both  parties  supposed.  Upon  petition  for  payment  for  the  surplus, 
or  to  set  aside  the  sale  at  the  option  of  the  purchaser ;  held, 
he  should  be  required  to  pay  for  the  surplus  at  the  same  rate 
as  for  the  172  acres.^ 

4.  The  purchaser  under  a  decree  is  considered  as  owner,  only 
from  the  time  he  pays  in  his  purchase-money,  not  from  the  confir- 
mation of  the  report,  by  which  he  is  declared  the  best  purchaser, 
he  having  taken  objections  to  the  title.^ 

5.  A  party  interested  in  the  proceeds  of  property  decreed  to  be 
sold,  although  his  right  in  the  property  is  merged  in  the  decree, 
retains  such  an  interest  as  will  enable  him  to  apply  to  the  Court, 
to  preserve  the  estate  from  injury  and  waste.^ 

6.  Where  a  vendee  had  purchased  land  of  a  person,  who  held 
title  under  a  void  decree  in  equity,  no  decretal  sale  having  been 
made ;  it  was  held,  that  the  vendee  was  presumed  to  have  known 
his  title,  and  that  his  title  failed  by  a  reversal  of  the  decree.*^ 

7.  We  have  already  (ch.  6)  considered  the  subject  of  sales 
at  auction^  and  the   circumstances  which   avoid   such   sales  ;(a) 

1  Wagner  v.  Cohen,  6  Gill,  97.  *  Mackrell  v.  Hunt,  2  Madd.  34,  n. 

2  Childress  v.  Hurt,  2  Swan,  487.  5  "Wagner  ;;.  Colien,  IJ  Gill,  07. 

3  Horn  V.  Denton,  2  Sneed,  125.  •>  Madeira  v.  Hopkins,  V2  B.  Mon.  595. 

(o)  See   Slater   v.   Maxwell,   6   Wall.  A  reasonable  notice  of  the  sale  is  suffi- 

Leg.  Intell.     With  regard  to  the  proceed-  cient ;  and  it  may  be  ordered,  in  the  dis- 

ings  iirior  to  the  sale,  which  may  affect  its  cretion  of  the  Court,  for  cash  or  credit, 

validity,  it  is  held  that  an  advertisement  Darrington  v.  Borland,  3  Port.  12. 

of  sale  by  the  Master  need  not  be  signed  A  sale  was  advertised,  to  take  place 

with  his  own  proper  signature,  but  may  between  the  hours  of  \'l  ami  5  o'clock  in  the 

be  printed  or  signed  by  another.     Coxe  aflernoon.     Held,  alth(;ugli  not  so  precise 

V.  Halsted,  1  Green,  Ch.  301.  as  convenience  required,  the  sale  should 


582  LAW    OF    VENDORS    AND    PURCHASERS.     [CHAP.  XXXIX. 

more  especially  the  act  of  piiffing  or  hy-bidding,  by  which  the  price 
is  unduly  enhanced,  and  which  the  law  treats  as  a  fraud  upon  the 
fair  purcliaser.  Sales  at  auction  by  order  of  Court  have  been 
subjected  to  similar  restriction.  Thus  it  is  held  to  be  the  policy 
of  the  Court  of  Chancery  to  encourage  a  fair  competition  at  a 
Master's  sale ;  and,  to  effect  this  object,  it  will  not  allow  any 
deception  whatever  to  be  practised  upon  bidders. ^  But,  at  a  sale 
by  order  of  Court,  a  reserved  bidding  was  allowed,  to  be  made 
one  of  the  conditions,  the  Master  to  fix  the  amount,  and  to  use  his 
discretion  in  communicating  it  to  the  parties  or  their  solicitors.^ 

8.  One  of  several  defendants  having  purchased  an  estate  sold 
under  the  decree,  without  having  obtained  leave  to  bid ;  another 
defendant  moved,  that  the  estate  might  be  again  put  up  at  the 
price  bid,  and,  if  it  should  bring  more,  that  the  sale  might  be  set 
aside,  and  tlie  purchaser  pay  the  expenses  of  the  resale,  and  the 
costs  of  the  motion.  The  Court  refused  the  application,  but  with- 
out costs. ^ 

8  a.  An  estate  was  sold  at  auction  at  the  suit  of  a  mort- 
gagee, with  liberty  to  all  parties  to  bid,  the  auctioneer  also  stating 
tliat  the  sale  was  without  reserve.  The  plaintiff  bid,  and  ran 
up  the  purchaser  from  £14,000  to  X  19,000,  no  other  person 
bidding.  Held,  no  ground  for  a  petition  in  equity  to  release 
the  purchaser  from  his  bargain.'* 

8  h.  In  England,  at  a  Master's  sale,  the  biddings  are  kept  open 
till  a  final  confirmation  of  the  sale,  upon  his  report.  New  bids 
may  be  made.  But  in  Illinois,  except  in  case  of  fraud,  mistake 
or  other  illegality,  the  sale  is  completed  by  the  fall  of  the  hammer, 
and  the  purchaser  entitled  to  a  deed  on  payment  of  the  price. 
But  the  sale  may  be  set  aside  for  gross  inadequacy  of  price.^ 

9.  The  parties  interested  in  the  property  have  a  right  to  expect, 
that  it  will  be  put  up  and  sold  in  the  usual  manner,  and  in  a  way 
to  produce  a  fair  competition  among  the  persons  attending  to  bid. 
And  where  the  property  has  been  sacrificed,  by  the  neglect  or 
mistake  of  the  Master  in  this  behalf,  or  by  his  having  improperly 

1  Veeder  v.  Fonda,  3  Paige,  94.  *  Dimmock  v.  Hallett,Law  Rep.  (Eng.) 

2  Jervoise  v.  Clarke,  1  Jac.  &  W.  389.     Eq.  January,  1867,  p.  21. 

3  Elworthy  v.  Billing,  10  Sim.  98.  5  Jackson  v.  Warren,  32  111.  331. 

not  be  set  aside  on  this  ground.     Coxe  v.  house,  but  fifteen  or  twenty  yards  from 

Halsted,  1  Green,  Ch.  311.  the  boundary  line.     Held,  the  sale  should 

A  sale  was  advertised  to  be  made  on  not  be  set  aside  for  this  cause.    Eerguson 

the  premises,  and  actually  took  place  within  v.  Franklin,  6  Munf.  305. 
eighty  yards,  and  in  view  of  the  dwelling- 


CHAP.  XXXIX.]      SALES  BY  ORDER  OF  COURT.  583 

put  up  for  sale  several  lots  together,  which  should  have  been  sold 
separately ;  the  parties  injured  are  entitled  to  a  resale,  or  to  such 
other  relief  as  can  be  given,  without  doing  injustice  to  a  hond-jide 
purchaser.^  Where  the  pro])erty  consists  of  separate  and  distinct 
parcels,  which  can  be  enjoyed  separately  without  diminishing  their 
value,  it  is  the  duty  of  the  officer  to  sell  in  parcels,  except  in  very 
special  cases."(a) 

9  a.  A  decree  for  sale  should  give  at  least  90  days  for  payment 
of  the  debt,  if  there  is  no  riglit  of  redemption. ^ 

9  b.  Where  a  statute  orders  on  what  credit  land  shall  be  sold 
judicially,  a  time  cannot  be  fixed  either  shorter  or  longer.  Such 
sale  was  set  aside  on  appeal,  upon  the  ground  of  being  too  short 
and  operating  unfavorably  to  the  debtor,  though  not  excepted  to  in 
the  court  below."^ 

9  c.  Where  a  trustee  has  the  power  of  sale  at  auction,  after  a 
certain  notice,  advertises  and  sells,  he  cannot  resell  on  the  same 
day  upon  non-fulfilment  of  the  first  bargain.  And  the  difference 
in  price  is  not  the  measure  of  damages.^ 

9  c?.  If  a  commissioner  does  not  advertise  as  ordered  by  the 
judgment,  an  undersale  will  not  be  confirmed.*^ 

10.  In  New  York,  all  sales  of  mortgaged  premises,  under  a 
decree  of  the  Court,  must  be  made  by  a  Master,  or  under  his  im- 
mediate direction.  A  sale  by  a  person  deputed  for  the  purpose  by 
a  Master,  in  his  absence,  is  irregular,  and  will  be  set  aside. ''^ 

11.  Sale  by  assignees  under  a  bankruptcy,  by  auction,  to  one 
of  the  creditors,  previously  consvilted  as  to  the  mode  of  the  sale, 
and  contrary  to  an  order  that  a  receiver  should  be  appointed  to 
sell.  Another  sale  was  directed  ;  the  estate  to  be  put  up  at  the 
aggregate  amount  of  the  purchase-money,  and  tlie  sum  laid  out  in 
substantial  improvements  and  repairs  ;  which  were  to  be  allowed 
in  case  of  a  sale  at  an  advance  ;  but,  if  no  further  bidding,  the 
purchaser  to  be  held  to  his  purchase.^ 

1  American,  &c.  v.  Oakly,  9  Paige,  259.  6  AVilliams  v.  Woodruff,  1  Duv.  257. 

2  Ibid.  7  Heyer  v.  Deaves,  2  Joliiis.  Ch.  154. 

3  Mills  V.  Heeney,  35  111.  173.  8  Hughes   ex  parte,   Lyon   ex  parte,  6 

4  Dunn  V.  Salter,  1  Duv.  342.  Ves.  622. 

5  Barnard  v.  Duncan,  38  Mis.  170. 

(a)  The  last  clause  of  the  138th  rule  ble  if  owned  by  one  person,  or  where,  in 

was  only  intended  to  provide  for  special  consequence  of  some  prior  incumbrance 

cases ;    where  it  is  evident  that  several  upon  all  the  parcels,  purchasers  will  not 

parcels,  from  their  peculiar  location  in  ref-  be   likely   to   bid    ujion   a   jtortion    only. 

erence  to  each  other,  will  be  more  valua-  American,  &c.  v.  Oakly,  9  Taige,  259. 


584  LAW    OF   VENDORS    AND    PURCHASERS.     [CHAP.  XXXIX. 

12.  By  an  order  for  the  resale  of  mortgaged  premises,  the 
Master  was  directed  to  put  them  up  at  a  particular  sum,  and 
resell,  if  that  amount  or  more  was  bid.  The  premises  were  struck 
off  for  the  sum  specified,  and  thereupon  the  Master,  acting  under 
direction  of  the  complainant's  solicitor,  and  without  any  previous 
intimation  to  that  effect,  insisted  upon  the  immediate  payment  of 
the  bid  in  specie,  although  the  purchaser  offered  to  pay  in  good 
current  bank-bills,  or  drafts  on  specie-paying  banks,  or  to  pay 
specie  as  soon  as  it  could  be  obtained  from  the  banks.  The  Mas- 
ter immediately  put  up  the  property  again,  upon  the  terms  that 
specie  should  be  paid  down,  and,  no  person  purchasing  on  these 
terms,  he  reported  that  the  terms  upon  which  the  resale  was 
directed  had  not  been  complied  with.  Held,  the  conduct  of  the 
Master  was  improper  and  unjustifiable,  and  the  purchaser  entitled 
to  a  deed  upon  payment  of  the  amount  of  his  bid  ;  and  the  report 
of  the  Master  was  set  aside,  and  he  was  directed  to  execute  to  the 
purchaser  a  deed  upon  such  resale.^ 

13.  A  motion  to  open  biddings  for  several  lots,  purchased  by 
different  purchasers,  on  an  advance  of  a  certain  sum  for  each  lot, 
is  irregular.^ 

14.  An  announcement  by  the  Master,  after  the  property  has 
been  struck  off,  at  a  sale  made  by  him,  that,  if  the  purchaser  does 
not  comply  with  the  terms  of  the  sale,  the  property  will  be  resold 
at  his  expense,  does  not  discharge  the  purchaser  from  his  bid.^ 

14  a.  Where  land  is  sold  by  a  Master  under  a  decree,  the  fact 
that  the  price  was  but  about  two-tliirds  of  the  value  of  the  land, 
though  not  of  itself  sufficient  to  defeat  the  sale,  will  be  a  proper 
ground,  with  others,  of  objection  to  its  approval.^ 

15.  Biddings  will  not  be  opened  because  the  price  is  too  high 
or  too  low,  if  the  sale  has  been  regularly  conducted  and  fairly 
made.^  But,  where  several  lots  have  been  purchased  by  the  same 
person,  and  the  biddings  are  ordered  to  be  opened  as  to  those  first 
purchased,  the  purchaser  will  be  allowed  to  open  them  as  to  the 
remainder.^  And  if  there  should  be  made  to  appear,  either 
before  or  after  a  sale  has  been  ratified,  any  injurious  mistake, 
misrepresentation,  or  fraud,  the  biddings  will  be  opened,  the  sale 
rejected,  or  ratification  rescinded,  and  the  property  resold.'^     It  is 

1  Baring  v.  Moore,  5  Paige,  48.  5  Gordon  v.  Sims,  2  M'C.  Cli.  159. 

2  Goodall  V.  Pickford,  6  ISira.  379.  6  Pnce  v.  Price,  1  Sim.  &  Stu.  386. 

3  National,  &c.  I'.  Loomis,  11  Paige,  431.  ''  Anderson  v.  Foulke,  2  Harr.  &  G. 

4  Sowards  v.  Pritcliett,  37  111.  617.  346.     See  p.  580. 


CHAP.  XXXIX.]      SALES  BY  ORDER  OF  COURT.  585 

held,  that  tlie  Master  wljo  sells  property  should  insert  nothing  in 
his  description  in  the  notice  of  sale  which  may  unduly  enhance 
the  value  of  the  property  or  mislead  the  purchaser.  Tlius,  where 
land  sold  under  a  decree  was  descril)ed  in  the  Master's  notice  as 
containing  about  twenty  acres,  when  in  fact  it  contained  but  thir- 
teen, and  one  of  the  complainants,  who  was  present  at  the  sale, 
knew  of  the  deficiency,  but  concealed  it  from  the  Master  and  the 
bidders,  and  encouraged  them  to  bid ;  the  sale  was  set  aside  on 
application  of  the  purchaser.^  So  where  a  memorandum,  not 
authorized  by  the  Master,  was  read  at  a  Master's  sale,  describing 
the  dimensions  of  the  dwelling-houses  sold,  and  which  turned  out 
to  be  incorrect  by  several  feet,  the  sale  was  vacated.^  So,  it  is 
said,  in  Lowndes's  case,  the  sale  was  set  aside  at  the  instance  of 
the  purchaser  on  account  of  a  serious  mistake  in  the  representa- 
tion of  the  lands ;  in  Roper's  case,  because  the  land  was  knocked 
off  to  the  purchaser  prematurely  by  mistake  of  the  auctioneer, 
who  did  not  hear  a  higher  bid.'^ 

16.  A  purchaser,  defendant  in  a  suit  for  specific  performance, 
did  not  in  his  answer  mention  any  warranty  or  representation 
made  by  the  vendor,  and  insisted  merely  that  a  good  title  was  not 
shown.  A  reference  of  title  was  ordered  ;  the  Master  reported  in 
favor  of  the  title,  and  a  decree  for  specific  performance  was  pro- 
nounced. After  the  order  of  reference,  the- defendant  discovered 
that  the  timber  on  the  estate,  which  constituted  its  principal  value, 
was  much  less  in  quantity  than  it  had  been  represented  to  be  in  a 
statement,  the  accuracy  of  which  was  alleged  to  have  been  war- 
ranted at  the  sale  ;  but  the  fact  of  such  warranty  was  strongly 
controverted.  Under  these  circumstances,  leave  was  given  to  file 
a  supplemental  bill,  in  the  nature  of  a  bill  of  review,  in  order  that 
the  defendant  might  have  the  same  benefit  of  the  alleged  warranty, 
as  if  he  had  originally  insisted  on  it  in  his  answer.  And,  after 
such  leave,  he  has  a  right  to  file  the  bill,  without  having  previously 
paid  the  purchase-money  which  the  decree  commands  him  to  pay, 
if  the  time  at  which  the  adverse  party,  in  the  due  execution  of  the 
decree,  can  compel  payment,  has  not  yet  arrived.^ 

17.  A  purchaser  under  a  decree  agreed  to  sell  to  A.,  and  died, 
his  heir  being  abroad.     Ordered,  that  A.  should  be  substituted  for 


1  Veeder  v.  Fonda,  3  Paig:e,.  94.  3  Gordon  v.  Sims,  2  M'Cord,  Ch.  195. 

2  Laight  V.  Pell,  1  Edw.  577.  *  Partridge  v.  Usborne,  5  Kuss.  195. 


586  LAW    OF   VENDORS   AND    PURCHASERS.      [CHAP.  XXXIX. 

him  as  purchaser,  be  at  liberty  to  pay  the  purchase-money  into 
court,  and  be  let  into  possession.^ 

18.  Under  a  decretal  order  of  the  Court,  certain  lands  were 
sold  by  the  Master,  and  the  purchaser,  in  conformity  with  a 
further  decretal  order,  gave  security  to  the  Master,  by  a  covenant 
with  a  surety  to  pay  the  purchase-money  within  fifteen  days ;  but 
the  money  was  not  thus  paid.  Held,  that  a  remedy  at  common 
law  would  be  impracticable  and  inadequate  ;  that  no  proper  dam- 
ages could  be  given  upon  such  covenant ;  that  whoever  makes 
himself  party  to  the  proceedings  of  a  Court  of  Equity,  and  under- 
takes to  do  a  particular  act  under  its  decretal  orders,  may  be 
compelled  to  perform  what  he  has  undertaken ;  and  that  equity 
may  by  attachment  compel  a  purchaser  at  a  sale  by  the  Master  or 
his  surety  to  pay  the  purchase-money.  So,  although  the  surety 
was  not  aware  that  he  subjected  himself  to  the  summary  process 
of  the  Court ;  nor  that  the  plaintiff  had  a  right,  on  the  default,  to 
resell  the  lands.  Nor  can  the  surety  take  any  exception  to  the 
title,  if  the  purchaser,  his  principal,  has  failed  to  do  so.^ 

19.  A  purchaser  of  estates  sold  under  a  decree  was  discharged 
on  motion  from  his  purchase,  upon  proof  of  error  in  the  decree, 
though  the  parties  were  proceeding  to  rectify  it.  In  this  case, 
Lord  Eldon  remarked,  that  he  would  not  extend  the  rule  which 
the  Court  had  adopted,  of  compelling  the  purchaser  to  take  the 
estate  where  a  title  is  not  made  till  after  the  contract,  to  any  case 
to  which  it  had  not  already  been  applied.^ 

20.  The  Court  of  Chancery  has  power,  even  after  enrolment,  to 
open  a  regular  decree  obtained  by  default,  and  to  discharge  the 
enrolment,  for  the  purpose  of  a  defence  upon  the  merits,  where 
the  party  has  been  deprived  of  such  defence  either  by  mistake  or 
accident,  or  by  the  negligence  of  his  solicitor.  So,  after  a  sale  by 
a  Master  under  the  decree,  where  the  complainant  himself  became 
the  purchaser,  and  has  not  reconveyed  to  a  bond-fide  purchaser  or 
mortgagee.* 

21.  An  appeal  lies  from  the  decretal  order  of  the  chancellor, 
refusing  to  open  the  sale  of  mortgaged  premises  and  grant  a  resale, 
on  application  of  a  defendant,  although  he  has  permitted  the  bill 
to  be  taken  against  him  pro  confesso. 

22.  A  resale  will  be  ordered,  where  mortgaged  premises  have 

1  Pearce  v.  Pearce,  7  Sim.  138.  3  Lechmere  v.  Brasier,  2  Jac.  &  W.  287. 

2  Wood  V.  Mann,  3  Sumn.  318.  *  Millspaugli  v.  McBride,  7  Paige,  509. 


CHAP.  XXXIX.]      SALES  BY  ORDER  OF  COURT.  587 

been  sold  greatly  below  their  value,  and  bought  in  by  the  mort- 
gagee, if  the  mortgagor,  or  those  standing  in  his  place,  have  been 
misled  by  the  mortgagee,  or  even  by  a  third  person,  in  reference 
to  the  foreclosure,  and  in  consequence  thereof  do  not  attend  the 
sale.i 

23.  Land  was  sold  under  a  decree,  and  the  sale,  after  opi)Osition 
by  the  purchaser,  was  ratified ;  but  the  trustee  received  neither 
notes  nor  bonds  for  the  purchase-money.  Tlie  period  for  payment 
having  expired,  the  chancellor  ordered  the  purchaser  to  pay  to 
the  trustee,  or  bring  into  court,  the  amount  of  the  purchase-money 
and  interest  before  a  given  day,  or  show  good  cause  to  the  con- 
trary. The  purchaser  having  failed  to  comply,  the  chancellor 
then  ordered  an  attachment  against  him,  to  enforce  obedience  to 
his  first  order.     On  appeal,  held,  that  the  proceeding  was  valid.^ 

24.  Where  sales  of  estates  had  fraudulently  taken  place,  under 
decrees  of  the  Court  of  Exchequer  in  Ireland,  obtained  by  collusion 
between  the  tenant  for  life,  the  mortgagee,  the  person  in  whose 
favor  a  charge  had  been  created,  and  the  purchaser ;  and  where 
the  interests  of  the  tenant  in  remainder  had  not  been  protected  in 
such  suits :  the  Court  of  Chancery  in  Ireland,  on  his  coming  into 
possession,  granted  him  relief  on  a  bill  filed  to  redeem ;  and  that 
decree  was  afl&rmed  by  the  Lords.^ 

25.  A  purchase  under  a  decree,  though  affected  by  irregularity 
and  notice,  will  not  be  set  aside  in  favor  of  a  subsequent  remainder- 
man ;  a  prior  tenant  in. tail  having  been  a  party.* 

26.  The  Court  will  not  discharge  a  purchaser  and  substitute 
another,  even  upon  paying  in  the  money,  without  an  affidavit  that 
there  is  no  under-bargain ;  for  the  new  purchaser  may  give  the 
other  a  sum  of  money  to  stand  in  his  place  and  so  deceive  the 
Court.5 

27.  A  trustee  having  sold  lands  by  order  of  the  Court  of  Chan- 
cery, and  reported  his  proceedings  to  that  tribunal,  where,  after 
objections  by  the  purchaser,  they  were  ratified,  and  the  ratification 
sanctioned  by  the  Appellate  Court ;  it  is  no  longer  competent  for 
such  purchaser  to  contest  that  sale,  nor  to  object  that  he  was  not 
reported  in  the  usual  way,  as  the  purchaser.^ 

28.  An  original  bill  in  chancery  cannot  be  filed  by  a  party  to  a 

1  Tripp  V.  Cook,  26  Wend.  143.  *  Lloyd  v.  Johnes,  9  Ves.  37. 

2  Anderson  v.  Foulke,  2  Harr.  &  G.  ^  Rigby  r.  Macnaniara,  6  Ves.  515. 
346.  •»  Anderson  v.  Foulke,  2  ilarr.  &  G. 

3  Bandon  v.  Becher,  3  Clark  &  Fin.  479.  346. 


588  LAW    OF   VENDORS   AND   PURCHASERS.      [CHAP.  XXXIX. 

foreclosure  suit,  to  set  aside  a  Master's  sale  under  a  decree,  where 
relief  could  have  been  obtained  by  a  summary  application  to  the 
Court,  in  the  foreclosure  suit.^ 

29.  A  vendor  obtained  a  decree  for  specific  performance,  with  a 
declaration  that,  if  the  purchase-money  was  not  paid  by  a  given 
day,  the  estate  should  be  sold,  the  proceeds  paid  to  the  vendor, 
and  the  purchaser  be  made  personally  liable  for  any  deficiency. 
The  Master  fixed  the  day  of  payment,  but  the  purchaser  died 
before  that  day,  insolvent ;  and  a  creditor's  suit  was  instituted  for 
the  administration  of  his  assets.  Upon  a  bill  of  revivor  and  sup- 
plement, filed  by  the  vendor,  praying  to  have  the  benefit  of  the 
creditor's  suit,  as  well  as  his  own ;  held,  he  was  not  entitled  to 
prove  against  the  general  assets  of  the  testator,  and  at  the  same 
time  to  reserve  his  lien  on  the  estate  contracted  to  be  sold,  in  case 
of  a  deficiency  in  the  general  assets,^ 

30.  A  purchaser  under  a  decree  is  not  affected  by  irregularities 
and  defects  in  the  decree,  by  which  the  application  of  the  money 
may  not  have  been  properly  secured.^     . 

31.  A  sale  will  not  be  reversed  on  appeal,  unless  it  effected 
wrong  or  injustice.* 

31  a.  If  either  a  mortgagor,  or  one  purchasing  from  him  pending 
a  suit  for  foreclosure  or  after  a  sale  of  the  land,  withholds  the  land 
from  the  purchaser  under  the  decree ;  the  Court  on  motion  may 
treat  tlie  purchaser  as  a  party  to  the  decree,  and  order  that  pos- 
session be  delivered.  If  disobeyed,  an  injunction  may  issue,  and 
afterwards  an  attachment  or  writ  of  assistance.^ 

32.  On  an  application  to  refuse  confirmation  of  a  Master's  sale, 
and  to  order  a  resale,  —  a  case  where  speedy  relief  may  be  neces- 
sary,—  the  Court  may  properly  hear  the  application,  and  act  on 
ex  parte  affidavits  on  both  sides.^ 

33.  A  purchaser  at  a  sale  under  a  decree  in  a  suit  for  partition 
will  not  be  attached  for  refusal  to  pay  the  purchase-money,  until 
after  an  order  to  pay  it.'^ 

1  Brown  v.  Frost,  10  Paige,  243.  5  Jackson  v.  Warren,  32  111.  331. 

2  Rome  V.  Young,  3  Y.  &  Coll.  199.  6  Savery  v.  Sypher,  6  Wall.  157. 

3  Curtis  V.  Price,  12  Ves.  89.  ■?  Cowell  v.  Lippitt,  3  R.I.  92. 

4  Sowards  v.  Pritchett,  37  111.  517. 


CHAP.  XL.]  MISCELLANEOUS  POINTS   OF   PRACTICE.  589 


CHAPTER    XL. 


MISCELLANEOUS    POINTS    OF   PRACTICE. 

1.     Payment    of    purchase -money  into         14.  Ne.  exent  regno. 

court,  and  the  disposal  thereof.            "  21.  Production  of  deeds,  &c. 

6.     Security  for  purchase-money.  24.  Arbitration  and  award. 
10.     Injunctions. 

1.  Questions  sometimes  arise,  in  reference  to  the  exercise  of  the 
authority  of  the  Court  over  purchase-money  paid  to  the  vendor,  or 
the  disposition  of  purchase-money  paid  into  court,  (a) 

2.  The  Court  will  not  compel  a  vendor  to  pay  the  deposit-money 
into  court,  though  he  retains  possession  of  the  estate,  if  the  delay 
ill  the  completion  of  the  contract  is  occasioned  by  the  purchaser.^ 

2  a.  The  defendants,  a  railroad,  having  purchased  the  plaintiff's 
estate,  which  was  let  and  underlet,  entered  and  ejected  the  weekly 
subtenants ;  and  thereupon  third  persons  entered,  and  did  great 
damage  to  the  houses.  Held,  on  motion,  the  .defendants  must  pay 
the  purchase-money  into  court,  without  the  option  of  surrendering 
possession.^ 

2  h.  Where  a  railway  company,  by  agreement  with  an  owner 
of  land  required  for  their  road,  entered  thereupon,  giving 
bond  for  the  price ;  held,  on  default  of  payment,  he  could  not 
enjoin  their  continuing  in  possession  till  payment,  though  he  might 
perhaps  be  entitled  to  a  receiver,  or  to  have  the  money  paid  into 
court.^ 

2  c.  The  plaintiff  agreed  to  sell  land  to  the  defendants,  a  railroad 
company,  at  a  sum  to  be  paid  on  completion,  with  4  per  cent 
interest  from  the  time  of  the  contract ;  the  defendants  to  have  the 
right  of  taking  possession  on  making  a  certain  deposit.  If  from  any 
cause,  other  than  the  plaintiffs  default,  the  purchase  should  not  be 
completed  in  six  months,  the  interest,  from  the  end  of  that  period, 

1  "Wynne  v.  Griffith,  1  Sim.  &  St.  147.  3  Pell  v.  Nortiiampton,  &c.  Law  Rep. 

2  Pope  V.  Great,  &c.  Law  Rep.  (Eng.)     (Eng.)  Eq.  February,  18G7,  p.  99. 
Eq.  February,  1867,  p.  170. 

(ft)  See  Specific  Peiformance. 


590  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XL. 

to  be  5  per  cent.  The  deposit  haying  been  made  and  possession 
taken,  the  defendants,  more  than  three  years  from  the  date  of  the 
contract,  were  urged  to  complete  the  transaction,  but  relied  on  a 
want  of  funds  as  the  reason  for  not  doing  it.  The  plaintiff  then 
files  a  bill  for  specific  performance,  and  praying,  that  in  default  of 
payment  he  might  either  enforce  or  rescind  the  agreement,  and, 
in  the  latter  case,  the  deposit  be  declared  forfeited,  delivery  of  pos- 
session ordered,  and  the  defendants  enjoined  from  remaining  in 
possession,  or  using  the  land.  The  plaintiff"  also  moved  that  the 
balance  of  the  purchase-money  be  paid  into  court.  Held,  as  the 
defendants  were  using  the  land  for  the  designed  purpose,  and  as 
the  agreement  provided  for  an  increased  interest  in  case  of  delay ; 
the  motion  was  rightly  overruled,  and  the  plaintiff"  must  proceed 
to  a  decree  in  the  cause.^ 

3.  In  a  suit  for  payment  of  creditors,  the  real  estates  of  the 
testator  were  ordered  to  be  sold.  The  party  reported  purchaser  of 
one  of  the  estates  entered  into  possession,  and  accepted  the  title, 
and  proper  conveyances  were  executed.  On  application  by  the 
creditors  to  have  the  purchase-money  paid  out,  the  purchaser 
stated,  that  the  tenants  had  been  served  with  a  writ  of  right  by  a 
person  who  was  claimant  of  the  whole  estate  under  an  adverse 
title.  Held,  the  Court  could  do  no  more  than  give  possession,  and 
a  conveyance  under  a  title  satisfactory  to  the  purchaser  himself; 
and  after  this  he  had  no  right  to  object  to  the  application  of  the 
purchase-money  ;  and  the  Court  ordered  accordingly .^ 

4.  An  estate  sold  under  a  decree  was  described  as  of  a  certain 
annual  value,  and,  by  the  conditions,  compensation  was  to  be  made 
for  any  error  in  the  particular.  The  purchaser  paid  his  money 
into  court,  was  let  into  possession,  and  took  a  conveyance.  After 
he  got  into  possession,  he  discovered  that  the  rent  was  overstated 
in  the  particular.  Held,  he  was  entitled  to  a  compensation  out  of 
his  purchase-money.^ 

5.  A  vendor,  resisting  an  application  by  the  purchaser  for  pay- 
ment into  court  of  the  deposit,  in  the  hands  of  the  vendor's  agent, 
was  charged  with  a  loss  by  the  agent's  failure.^ 

6.  Equity  may  also  act  upon  the  question  of  security  for  the 
purchase-money  of  land  sold. 


1  Pryse  v.  Cambrian,   &c.   Law   Rep.  ^  rnnn  v.  Cann,  3  Sim.  447. 

(Eng.)  Eq.  May,  1867,  p.  443.  ■*  Eenton  v.  Browne,  14  Ves.  144. 

■i  Thomas  v.  PoweU,  2  Cox,  894. 


CHAP.   XL.]  MISCELLANEOUS   POINTS   OP   PRACTICE.  591 

7.  Upon  a  motion  for  an  injunction  to  stay  proceedings  at  law, 
it  appeared  that  the  defendant  had  agreed  to  purchase  an  estate 
from  the  plaintiff  for  XlOO,  and  for  an  annuity  for  her  life ;  but  it 
was  n(5t  specified  what  security  should  be  given  for  the  annuity. 
The  defendant  offered  his  bond  and  judgment.  Held,  the  annuity 
should  be  secured  by  charge  upon  the  estate,  as  well  as  by  the 
bond  and  judgment.^ 

8.  An  agreement  to  purchase  land  for  an  annuity  for  the  life  of 
the  vendor,  to  be  a  charge  on  the  land,  and  to  be  paid  quarterly, 
entitles  the  vendor  not  only  to  the  charge,  but  to  the  covenant 
of  the  purchaser  for  payment  of  the  annuity.^ 

9.  A  vendor,  having  lost  his  title-deeds,  agreed  to  give  the 
vendee  a  real  security  against  such  loss.  On  a  bill  for  specific 
performance,  he  stated  that  he  had  not  real  property  sufficient  for 
such  security,  but  offered  ample  personal  security.  Held,  he  was 
bound  to  procure  a  sufficient  real  security.^ 

10.  The  equity  power  of  injunction  is  sometimes  exercised 
as  between  vendor  and  purchaser. 

11.  Where  the  defendant  is  in  Maryland,  but  the  land  in  con- 
troversy in  Virginia,  and  it  is  sought  to  vacate  a  decree  of  a  Court 
in  Virginia  ;  though  this  cannot  be  done,  yet  tlie  defendant,  seeking 
to  enforce  such  decree,  may  be  enjoined  from  accepting  a  convey- 
ance of  lands  purchased  by  him  under  it,  or,  if  he  has  inequitably 
obtained  title,  may  be  decreed  to  reconvey.* 

12.  After  dismissal  of  a  bill  for  specific  execution  of  an  agree- 
ment, the  plaintiff  being  unable  to  make  a  good  title,  an  injunction 
to  restrain  him  from  proceeding  at  law  was  granted  on  motion ;. 
the  defendant  undertaking  forthwith  to  file  a  bill.^ 

13.  A  vendor  covenanted  that  no  building  except  tombs  should 
be  erected  on  any  part  of  his  land,  opposite  to  the  land  sold. 
Subsequently,  he  sold  part  of  the  opposite  land,  and  the  purchaser 
built  on  it,  without  objection  by  the  former  purchaser.  Afterwards, 
the  vendor  sold  a  further  part  of  the  oi)posite  land,  and  the  new 
purchaser  commenced  building.  The  original  purchaser  filed  a  bill 
for  an  injunction,  to  restrain  the  defendant  from  building  on  any 
part  of  the  land  of  the  original  vendor,  or  the  opposite  land  ;  but 
it  was  dismissed,  the  Court  holding,  that  the  covenant  extended 

1  Remington  v.  Deverall,  2  An«tr.  550.  *  Buchanan  v.  Lornian,  3  Gill,  52. 

2  Bower  v.  Cooper,  2  Hare,  408.  5  McNamara  v.  Arthur,  2  Ball  &  B. 

3  Walker  v.  Barnes,  3  Madd.  247.  349. 


592  LAW  OF  VENDORS  AND  PURCHASERS.     [CHAP.  XL. 

only  to  the  lands  of  the  original  vendor  exactly  opposite  to  the 
land  sold  to  the  plaintiff'.^ 

14.  An  injunction  will  lie  against  a  purchaser,  on  behalf  of 
creditors,  to  restrain  payment  to  the  heir.^  • 

15.  The  chancery  process  of  ne  exeat  regno  is  sometimes  ap- 
plied between  vendor  and  purchaser. 

16.  Bill  to  have  a  specific  performance  of  an  agreement,  and 
that  the  defendant  miglit  pay  X  1,900,  the  remainder  of  the  pur- 
chase-money, .£100  having  been  paid.  The  defendant  threatening 
to  go  abroad,  a  writ  ne  exeat  regno  was  granted,  to  be  marked 
in  the  sum  of  X300.^ 

17.  The  Court  refused  to  discharge  a  writ  of  ne  exeat  regno 
issued  against  the  purchaser,  and  marked  for  the  full  amount 
of  the  purchase-money  though  the  abatement  (which  it  clearly 
appeared  would  be  less  than  the  interest)  had  not  been  ascertained 
by  the  Master,  and  no  steps  had  been  taken  towards  the  execution 
of  the  conveyances.  The  sheriff,  having  taken  the  defendant 
under  the  writ,  refused  to  release  him  until  the  whole  sum,  for 
which  the  writ  was  marked,  was  paid  into  his  hands,  and  the  Court 
did  not  disapprove  of  his  conduct.^ 

18.  But,  to  entitle  the  complainant  to  a  writ  of  ne  exeat,  upon  a 
bill  for  specific  performance  of  a  contract,  against  the  vendee,  he 
must  show  a  debt  actually  due ;  and  must  therefore  show  affirma- 
tively that  he  is  able  to  make  a  good  title.^ 

19.  In  a  suit  for  specific  performance  by  a  vendor,  a  writ  of 
ne  exeat  regno  ought  not  to  issue,  unless  the  Court  deems  it  quite 
clear  that  there  must  be  a  decree  for  specific  performance.  Thus 
it  was  refused,  though  the  purchaser  had  taken  possession  and 
received  the  rents  after  delivery  of  the  abstracts.^ 

20.  Where  a  covenant  in  an  agreement  for  a  lease  was  broken, 
and  a  verdict  obtained  for  X500  as  damages  for  the  breach,  but  the 
plaintiff  in  tlie  action  died  before  the  judgment  was  perfected,  so 
that  the  damages  were  lost  at  law ;  the  Court,  on  a  bill  by  his 
representatives  for  specific  performance  of  the  agreement,  refused 
a  writ  of  ne  exeat  regno  for  the  amount.'' 

21.  The  production  of  title-deeds  and  other  papers  is  sometimes 


1  Patching  v.  Dubbins,  23  Eng.  Law  &  <  Boehm  v.  Wood,  Turn.  &  R.  332. 

Eq.  609.  5  Brown  v.  Haff,  5  Paige,  235. 

'i  Green  v.  Lowes,  8  Bro.  C.C.  217.  «  Morris  v.  McNeil,  2  Russ.  604. 

3  Goodwin  v.  Clarke,  2  Dick.  497.  ''  Jenkins  v.  Parkinson,  2  Myl.  &  Kee.  5. 


CHAP.    XL.]  MISCELLANEOUS    POINTS   OF   PRACTICE.  593 

required  by  the  Court,  as  a  condition  of  enforcing  specific  perform- 
ance.    (See  cli.  18.) 

22.  A  reversion  having  been  put  up  to  sale  by  auction,  describ- 
ing the  estate  as  leased,  with  a  covenant  on  tlic  part  -of  the  tenant 
to  repair ;  and  the  purchaser  objecting  to  the  title,  because  no 
counterpart  of  the  lease  was  in  possession  of  tlie  vendors,  it  being 
stated  to  be  in  the  hands  of  a  party  under  a  partition  made  some 
time  before ;  the  Court  thought  that  such  counterpart  ought  to  be 
deposited  for  the  benefit  of  all  parties,  before  it  could  compel  the 
purchaser  to  take.^ 

23.  Specific  marriage  articles  limited  a  joint  estate  to  the 
intended  husband  and  wife,  and  after  the  death  of  the  survivor  to 
the  use  of  the  heirs  of  the  body  of  the  husband  begotten  on  the 
wife ;  and  the  settlement  after  marriage  pursued  the  words  of  the 
articles.  The  husband  and  wife  levy  a  fine  and  first  mortgage, 
and  then  agree  to  sell.  The  articles  not  being  produced,  the 
Court  would  not  decree  them  to  be  carried  into  execution  by  a 
strict  settlement,  against  the  purchaser,  who  had  no  notice  of 
them. 2 

24.  We  have  already  had  occasion  to  speak  of  the  effect  of  an 
arbitration  and  award,  in  reference  to  the  rights* and  obligations 
of  vendor  and  purchaser,  (a)  A  few  additional  points  remain  to 
be  noticed  in  the  present  connection. 

25.  A  bill  lies,  to  compel  specific  performance  of  an  award  to 
convey  an  estate,  where  the  party  has  received  the  consideration.^ 

26.  Stipulation,  that  the  title  to  lands  sold  should  be  made  out 
to  the  satisfaction  of  a  third  person.  A  dispute  as  to  the  title  was 
referred  to  an  arbitrator,  with  power  to  settle  all  questions  arising 
out  of  the  agreement,  who  awarded  that  the  title  should  be  taken, 
with  a  bond  of  indemnity  in  case  of  eviction.  Held,  the  award 
was  bad,  because  the  arbitrator  had  exceeded  his  authority  in 
ordering  a  bond,  and  had  not  decided  upon  the  validity  of  the 
title.4 

27.  Under  a  contract  for  sale,  at  a  price  to  be  fixed  by  an  award 
within  a  limited  time  during  the  lives  of  the  parties,  the  death  of 
one  is  not  an  accident  against  which  tlie  Court  will  relieve.^ 

1  Shore  v.  Collett,  Coop.  234.  4  xjoss  v.  Boards,  3  Nev.  &  Per.  382. 

2  Cordwell  v.  Mackrill,  Arabl.  515.  &  Blundell  v.  Brettargh,  17  Ves.  232. 

3  HaU  V.  Hardy,  3  P.  Wms.  187. 

(a)  See  Specific  Performance,  Arbitration. 
38 


594  LAW   OF   VENDORS   AND   PURCHASERS.  [CHAP.   XL. 

28.  If  the  terms  of  an  agreement  are  to  be  ascertained  by 
an  award,  being  so  ascertained,  it  shall  be  specifically  performed  if 
any  thing  is  to  be  done  in  specie ;  such  as  a  conveyance,  &c.  But 
not  if  the  acts  done  towards  executing  it  by  an  award  are  not 
valid  at  law,  as  to  the  time,  manner,  or  other  circumstances ;  un- 
less there  has  been  acquiescence,  notwithstanding  the  variation  of 
circumstances,  or  part-performance.^(«) 

1  Ibid. 

(a)  It  is  said,  there  is  no  case  at  law  or  medium    of  arbitration  for  settling  the 

in  equity,  that,  if  an  award  is  not  made  at  terms   of  a   contract  having  failed,  this 

the  time  and  in  the  manner  stipulated,  the  Court  has  assumed  jurisdiction  to  deter- 

Court  have  substituted  themselves  for  the  mine,  that  there  is  a  contract,  though  not 

arbitrators,  and  made  the  award ;    even  at  law,   in   equity ;     which,   though   the 

where  the  substantial  thing  to  be  done  parties  never  agreed  to  it,  shall  be  specif- 

was  agreed  by  the  parties,  but  the  time  and  ically  executed.     Blimdell  v.  Brettargh, 

manner  left  to  others  to  prescribe.    So  also,  17  Ves.  232. 

that    there    is    no    instance    where,    the  ; 


INDEX. 


INDEX. 


ABANDONMENT  OF  SALE, 

by  vendor,  95. 
ABSTRACT  OF  TITLE,  291. 

time  of  delivering,  204,  206,  291. 

defect  of  title  apjieariug  on,  218,  227,  note. 

duty  of  vendor  as  to,  227,  228,  note. 

verification  of,  240. 

Master  in  Chancery  proceeds  on,  283,  291. 

reference  of  title  founded  on,  283,  291. 

who  is  entitled  to,  291. 

how  verified,  291. 

what  sufficient,  291. 
ACCEPTANCE, 

of  offer,  contract  by,  13. 

when  necessary  under  the  Statute  of  Frauds,  117. 
ACCIDENT, 

what,  594. 
ACCOUNT  OF  RENTS  AND  PROFITS,  464,  note. 
ACKNOWLEDGMENT  OF  DEED, 

form  of,  30,  31. 
ACT  OF  PARLIAMENT, 

title  under,  240. 
ACTUAL  NOTICE,  408,  411,  note. 
ADEQUATE  CONSIDERATION, 

specific  performance  requires,  449  and  note. 
ADMINISTRATOR, 

bond  of,  for  conveyance,  64. 

purchase  by,  a  trust,  415. 

and  heir,  respective  rights  and  liabilities  of,  567. 


598  INDEX. 

ADMISSION  OF  CONTRACT, 

whether  sufficient  under  the  Statute  of  Frauds,  111. 
ADVERSE  POSSESSION, 

title  founded  on,  215,  239,  290. 

what  sufficient  to  prevent  a  sale,  411,  note. 
ADVERTISEMENT  OF  AUCTIONEER, 

whether  evidence,  92. 
AFFIRMATION  AND  WARRANTY, 

distinction,  363. 
AFTER-ACQUIRED  PROPERTY, 

in  reference  to  a  devise,  what  is,  7. 
AGENCY, 

and  trust  compared,  386. 

ratification  of,  413. 
AGENT, 

may  contract  by  letter,  16. 

whether  authorized  to  receive  payment,  32. 

of  husband,  when  the  wife  is,  56,  note. 

for  sale  or  purchase,  65. 

deed  of,  must  be  authorized  by  deed,  66,  note. 

lease  by,  66,  note. 

an  auctioneer  is  an,  73. 

mode  of  sale  by,  73,  note. 

who  is  an,  under  the  Statute  of  Frauds,  89. 

the  receiver  of  a  deposit  is  not  an,  92. 

suit  for  deposit  against,  94. 

whether  a  license  may  be  executed  by  an,  129,  note. 

signing  or  execution  by,  whether  sufficient  under  the  Statute  of 
Frauds,  303. 

fraud  of,  354. 

misrepresentations  by,  354. 

ratification  of  sale  by,  355. 

duties  of,  in  relation  to  the  property  of  the  principal,  384,  386  and 
note. 

notice  to,  413. 

lease  to,  from  principal,  416. 

whether  a  proper  party  to  a  suit,  567,  569. 
AGREEMENT, 

(See  Contract.) 

to  devise,  1,  note,  449. 

and  conveyance,  distinction  between,  1. 

executed  and  executory,  1. 

between  husband  and  wife,  56,  note. 


INDEX.  599 

AGREEMENT  —  continued. 

meaning  of  the  term  in  the  Statute  of  Frauds,  98,  note. 

for  lease,  whctlier  valid  under  the  Statute  of  Frauds,  113,110,  note. 

cannot  be  i)artly  verbal  and  partly  written,  115,  IIG,  117. 

for  lease,  and  lease,  distinction,  293. 
how  enforced,  293. 
AIR, 

license  in  connection  with,  137. 
ALIEN  PURCHASER,  G5. 
ALIENAGE, 

effect  of,  upon  title,  239. 
ALTERNATIVE  CONTRACT, 

as  to  price,  22. 
AMENDS, 

in  case  of  revocation  of  license,  135. 
ANCILLARY, 

claim  for  compensation  in  equity  is,  423. 
ANNUITY, 

time  essential  in  case  of,  184. 
ANSWER, 

denying  mistake,  11. 

in  case  of  parol  contract,  117,  464. 

effect  of,  upon  costs,  547. 

of  purchase  for  valuable  consideration,  577. 
APPEAL, 

in  case  of  judicial  sale,  58G,  587. 
ARBITRATION, 

price  fixed  by,  22,  note,  196,  198. 

damages  fixed  by,  540. 

specific  performance  in  connection  with,  541. 
ASSIGNEE, 

of  vendee,  liability  of,  for  price,  52. 
bankrupt,  purchase  by,  404. 
covenant  in  deed,  defence  against,  500,  note. 
ASSIGNMENT, 

license,  whether  subject  to,  177,  221  and  note,  223  and  note. 

of  lease,  when  presumed,  290. 

parties  in  case  of,  564. 
ASSUMPSIT, 

for  price  paid,  by  vendee,  479. 

to  try  title,  479,  and  note. 
ATTACHING   OFFICER, 

is  not  a  trustee,  397,  note. 


600  INDEX. 

ATTESTED   COPIES   OF   DEEDS, 

when  required,  289,  290. 
ATTORNEY, 

liability  of,  for  deposit,  94. 

purchase  by,  from  principal,  403. 
AUCTION,  73. 

agency,  in  case  of,  72,  73. 

what  is  an,  73. 

when  a  sale  at,  is  completed,  75. 

sale  of  distinct  lots,  76. 

lease  by,  76. 

-duty,  in  case  of  leases,  76. 

puffing  in  case  of,  77. 

agreement  to  prevent  competition  in  case  of,  80. 

whether  within  the  Statute  of  Frauds,  86. 

parol  evidence  as  to  an,  90. 

deposit  in  case  of,  92. 

whether  Statute  of  Frauds  applies  to,  95. 

-duty,  payment  of,  not  a  part-performance,  151. 

sale,  to  trustee,  400. 

by  order  of  Court,  581. 
AUCTIONEER, 

whether  an  agent,  72,  87. 

whether  an  owner  may  act  as,  85. 

purchase  by,  85. 

authority  of,  whether  it  must  be  written,  85. 

whether  he  may  delegate  his  authority,  85. 

whether  he  may  receive  payment,  85. 

clerk  of,  signing  by,  89. 

declarations  of,  at  sale,  90,  91,  92,  172. 

is  a  stakeholder,  92. 

liability  of,  92,  note. 

action  by,  against  vendor,  92,  note. 

advertisement  of,  whether  evidence,  92. 

receiving  a  deposit,  liability  of,  92,  95. 

writing  of,  whether  sufficient  under  the  Statute  of  Frauds,  116, 
note. 

recovery  of  deposit  from,  485,  note. 
AUTHORITY, 

of  agent,  verbal,  65,  66,  and  note. 

auctioneer,  whether  it  must  be  written,  85. 
AWARD, 

specific  performance  of,  452,  594. 


INDEX.  601 


B. 

BANKRUPT, 

assignee  of,  is  a  trustee,  404. 
purchase  by,  404. 

mortgagee  of,  may  purchase,  405. 
BANKRUPTCY, 

effect  of,  upon  the  title  of  a  vendor,  235. 
BEXWELL  V.  CHRISTIE,  77,  note. 
BIDDING  AT  AUCTION, 

what  73  and  note. 

opening  of,  584. 
BILL,  &c., 

for  deposit,  defence  against,  95. 

of  particulars  in  suit,  when  required,  574. 
BOND, 

for  title,  claim  of  heirs  upon,  62. 

whether  the  Statute  of  Frauds  applies  to  the  sale  of,  107. 
when  sufficient  under  the  Statute  of  Frauds,  112. 
specific  performance  in  case  of,  435. 

for  price,  defence  to,  490,  note. 

liquidated  damages  in  case  of,  531,  note. 
BOOK, 

entry  in,  whether  a  sufficient  signing,  116. 
BRIDGE, 

license  to  build,  135,  136. 
BUILDING, 

when  personal  property,  3,  137. 
BURDEN  OF   PROOF, 

as  to  title,  218. 
BURNING   OF   PROPERTY   SOLD, 

effect  on  the  contract,  489. 
BY-BIDDERS,  77. 

at  sale  by  order  of  Court,  582. 


C. 


CALENDAR  AND    LUNAR   MONTHS,  205. 
CANCELLING   OF    CONTRACT, 

interest  in  case  of,  48. 

remedy  in  equity  by,  428,  note. 


602  INDEX. 

CASH, 

consideration  need  not  be,  19. 
CATCHING  BARGAINS, 

with  heirs,  &c.,  378. 
GA  VEAT  EMPTOR,  351,  352,  note,  580. 

venditor,  362. 
CERTAINTY, 

necessary  to  contract  by  letters,  16. 

in  case  of  part-performance,  148. 
of  contract,  165. 

specific  performance  requires,  439,  452,  453. 
CESTUI, 

may  purchase  trust  estate,  400,  note. 
CHOSE   IN  ACTION, 

article  for  purchase  is  not  a  mere,  7. 
CHURCH  TRUST, 

sale  in  violation  of,  397. 
CIVIL  AND   COMMON  LAW, 

as  to  sales,  362. 
CLERK   OF   AUCTIONEER, 

signing  by,  89. 
CLOUD   ON  TITLE, 
effect  of,  255,  note. 
COLLATERAL   CIRCUMSTANCES, 

parol  proof  of,  176. 
COMMON, 

license  as  to,  128. 
and  civil  law  as  to  sales,  362. 
COMPENSATION, 

in  case  of  part-performance,  158. 
doubtful  title,  212. 

deficiency  of  title  or  quantity,  273,  281,  330,  423. 
the  sale  of  a  lease,  298,  299,  304. 
misdescription,  309-312. 
fraud,  353. 
equity,  423,  545,  566. 
and  rescinding  compared,  426,  note. 

in  connection  with  specific  performance,  439,  449  and  note,  456. 
case  of  notice,  501. 
COMPETITION, 

agreement  to  prevent,  at  auction,  80. 
COMPROMISE, 

fraud  avoids,  345. 


INDEX.  COS 

CONCEALMENT, 

by  vendee,  357. 

general  effect  of,  361,  note. 

prevents  specific  performance,  445. 
CONCURRENT, 

when  conveyance  and  payment  must  be,  24. 
(See   Covenants.     Mutuality?) 
CONDITIONAL, 

tender  of  deed,  474,  489. 
CONDITIONS, 

of  auction,  parol  evidence  as  to,  90,  92. 

precedent  and  subsequent,  time  in  connection  with,  184. 
CONFIDENTIAL   RELATIONS, 

sale  in  violation  of,  384. 

what  are,  384. 
CONNECTED   WRITINGS, 

may  be  construed  together,  16. 
CONSIDERATION, 

of  contract,  18. 

to  whom  paid,  51,  52,  56. 

in  case  of  husband  and  wife,  56,  57. 

under  Statute  of  Frauds,  98,  note. 

of  covenants,  making  them  dependent  or  independent,  262,  note, 
265. 

mutuality  a  sufficient,  314. 

inadequate,  369,  370. 

(See  Inadequate  Consideration.) 

excess  of,  375. 

connection  of,  with  notice,  412,  note. 

specific  performance  requires,  449  and  note. 

nature  of,  449,  note. 

whether  covenants  are,  for  a  note,  &c.,  497. 
CONSPIRACY, 

as  to  sale  at  auction,  81. 
CONSTRUCTION, 

of  power  of  attorney,  67. 

Statute  of  Frauds,  98,  note.  111. 

of  contract,  162. 

as  to  price,  22. 

general  rules  of,  162. 

certainty  required  in,  1.65. 

in  case  of  separate,  connected  writings,  167. 

by  map  or  plan,  168. 


604  INDEX. 

CONSTRUCTION  —  continued. 

by  parol  evidence,  170. 

(See  Parol  Evidence.) 

of  contract  in  reference  to  time,  205. 
covenants,  262  and  note. 
CONSTRUCTIVE, 

fraud,  366. 

notice,  408,  409,  410,  note,  413,  note. 
CONTINGENT  REMAINDER, 

title  by  destruction  of,  222. 
CONTRACT, 

(See  Agreement.) 

and  conveyance,  distinction  between,  1. 

to  devise,  1,  note. 

and  offer,  distinction,  13. 

when  entire,  104,  note. 

sale  of,  whether  Statute  of  Frauds  applies  to,  107. 

construction  of,  162. 

by  separate,  connected  writings,  167. 

time  of  performing,  180. 

and  representation,  distinction,  (See  Frand.) 
CONVEYANCE, 

and  contract,  distinction  between,  1,  62. 

whether  contract  is  extinguished  by,  5. 

to  third  person,  effect  on  contract,  29 

by  agent,  authority  for,  66,  note. 

terminates  a  license,  130. 
COPIES   OF   TITLE-DEEDS, 

when  required,  289,  290. 
CORN, 

sale  of,  whether  Statute  of  Frauds  applies  to,  105, 
CORPORATION, 

suit  by  agent  of,  71. 
CORRESPONDENCE, 

contract  by,  15. 
COSTS,  160. 

of  conveyance,  by  whom  paid,  31. 

security  for,  when  required,  94. 

recovered  against  auctioneer,  how  he  may  recover,  96. 

against  trustee,  in  case  of  purchase  by  him,  405. 

against  purchaser  jpewrfew^e  lite,  418. 

in  equity  and  at  law,  547  and  note,  550,  553. 

effect  of  answer  upon,  547. 


INDEX.  G05 

COSTS  — co7i(ini(ed. 

when  allowed  to  vendee,  548. 

in  case  of  doubtful  title,  548  and  note,  555,  558. 

as  depending  upon  the  fliirness  of  the  transaction,  548,  note. 

in  case  of  delay  as  to  the  title,  549. 
imperfect  abstract,  549. 
refusal  to  convey,  550. 
the  death  of  the  vendee,  550. 
vendor,  550. 

liability  of  vendee  for,  551. 

in  case  of  possession,  551. 

when  not  allowed  to  either  party,  553. 

of  Master's  sale,  556. 

when  divided,  55G. 

upon  reference  to  a  Master,  558. 

right  to  recover  back,  560. 

incidental,  561. 
COURT, 

lease  by  order  of,  76. 

sales,  (See  Sale  by  order  of  Court.') 
COVENANT, 

omission  of,  in  deed,  corrected,  10. 

to  produce  title-deeds,  240. 

for  good  and  s^ifficient  deed,  good  and  valid  deed,  deed,  warranty 
deed,  good  and  perfect  deed,  proper  deed,  lawful  title^  S^c, 
266,  267,  269. 

for  further  assurance,  289. 
COVENANTS, 

when  required  of  vendor's  heirs,  62. 

what  shall  be  inserted  in  a  lease,  232. 

in  lease,  effect  of  upon  a  purchaser  of  the  lease,  233. 

mutuality  of,  242,  262,  note,  474. 

whether  dependent,  243  and  note,  and  seq. 

independent,  262  and  note,  476. 
note  in  case  of,  492. 

in  deed,  do  not  bar  an  action  for  fraud,  351. 

of  title,  equity  remedies  in  case  of,  422,  note,  423,  note,  427,  note. 

of  warranty,  action  upon  note  in  case  of,  497. 

in  deed,  damages  upon,  520  and  note. 
CREDITOR, 

in  trust  deed,  purchase  by,  400,  note. 
CROPS, 

sale  of.  Statute  of  Frauds  as  to,  101. 


606  INDEX. 


D. 

DAM, 

license  in  connection  with,  (See  License.) 
DAMAGES, 

or  penalty,  whether  a  contract  is  for,  22,  note, 
in  equity,  29,  note,  273,  423,  518. 
and  specific  performance,  431,  432,  439. 
of  vendor,  518. 

vendee,  48,  520. 
upon  covenants  in  deed,  520,  note. 

sale  of  personal  property,  520,  note, 
in  case  of  fraud,  524. 

exchange,  526. 
where  the  plaintiff  has  been  in  fault,  527. 
not  recovered  after  commencement  of  suit,  529. 
tender  of,  529. 
liquidated,  530. 

to  be  settled  by  arbitration,  (See  Arbitration.) 
DATE, 

day  of,  when  excluded,  206. 
DEATH, 

of  party  to  contract,  effect  of,  60. 
DEBT, 

sale  in  payment  of —  interest,  44. 
DECLARATIONS, 
of  agent,  71. 

auctioneer,  90-92,  172. 
DECREE, 

against  a  trustee,  in  case  of  purchase  by  him,  405. 
whether  notice  to  a  purchaser,  417. 
DEED, 

tender  of,  29,  246,  288,  470,  489. 

demand  for,  31,  473. 

of  agent,  how  authorized,  66,  note. 

undelivered,  whether  sufficient  evidence  of  contract,  112. 

defectively  executed,         „  „  „        112. 

insufficient,  may  be  a  good  license,  128. 

title  by,  validity  of,  221. 

inaccuracy  of,  an  objection  to  the  vendor's  title,  221. 

giving  of,  when  sufficient,  245,  254. 

of  third  person,  whether  sufficient,  246. 


INDEX. 


GOT 


'DEED  —  contimied. 

a  good  title  does  not  always  require  a,  290. 

tender  of,  whether  it  may  be  conditional,  474. 
DEFEASANCE, 

notice  of,  412,  note. 
DELAY, 

in  completing  a  sale,  effect  on  interest,  36. 

specific  performance,  (See  Time.) 
DEMAND, 

for  deed,  30,  473. 
DEMURRER, 

in  case  of  parol  contract,  118. 

for  multifariousness,  565  and  note. 
DEPENDENT, 

contract,  28. 

covenant,  243,  247,  474. 
DEPOSIT, 

of  purchase-money,  interest  in  case  of,  44,  46. 

suit  for,  in  case  of  agency,  70. 

in  auction  sale,  92. 

definition  of,  92. 

party  receiving,  is  a  stake-holder,  92. 

is  a  conditional  payment,  92. 

recovery  of,  92,  485. 

evidence  to  sustain  an  action  for,  92,  note. 

bill  or  note  for,  defence  against,  95. 

forfeiture  of,  95. 

claim  for,  against  vendor,  96. 

payment  of,  into  court,  96. 

whether  a  jDcnalty,  536. 
DESCENT, 

of  estate  contracted  for,  10. 

license,  whether  subject  to,  128. 
DESCRIPTION, 

of  property,  under  Statute  of  Frauds,  111,  note. 
DETERIORATION, 

of  property,  effect  on  price  and  sale,  205. 

interest  in  case  of,  42,  note,  44. 
DEVISE, 

contract  for,  1,  note,  449. 

by  a  purchaser,  effect  of,  7,  140. 

revocation  of,  by  sale,  9,  10. 

of  estate  previously  sold,  10. 


608  INDEX. 

DEVISE  — ■  continued. 

license,  whether  subject  to,  128. 

title  by,  222. 

parties  to  suit  in  case  of,  567. 
DISABILITY, 

of  party  to  perform,  effect  on  contract,  29  and  note,  250,  483,  note. 
DISCRETION, 

specific  performance  is  matter  of,  443. 
DITCH, 

license  to  dig,  125,  note. 
DOLUS  MALUS, 

as  connected  with  notice,  407. 
DOMINANT  A'ND   SERVIENT  TENEMENTS, 

license  in  connection  with,  125  and  note. 
DOUBTFUL, 

title,  whether  sufficient,  210,  211,  222,  224,  255  and  note,  309, 
441,  note,  454,  456. 
what  is  a,  210. 
costs  in  case  of,  548,  558. 
DOWER, 

deduction  on  account  of,  62. 

vendor  bound  to  furnish  a  release  of,  267,  note. 
DRAIN, 

license  for,  125,  note. 
DRUNKENNESS, 

effect  of,  upon  a  sale,  368. 
DUTCH   AUCTION,  77,  note. 
DUTY, 

auction,  when  recoverable,  76. 
to  what  applicable,  76. 


E. 
EASEMENT, 

and  license,  distinction  between,  124,  127,  132. 
ELECTION, 

as  to  devise,  applies  to  a  purchaser,  9. 

right  of,  as  to  price,  22. 

of  remedy  by  vendee,  482. 
ENTAILMENT, 

sale  of  remainder  in  case  of,  334. 
ENTIRE, 

when  a  sale  is,  103,  142,  271,  272,  note,  279. 


INDEX. 


609 


ENTRY, 

in  a  book,  whether  a  sufficient  signing,  116. 
EQUITABLE   TITLE, 

whether  contract  gives,  6. 

sufficient,  219,  259. 
EQUITY, 

title  of  purchaser  in,  6. 

and  law,  jurisdiction  of,  as  to  mistake,  12. 

in  case  of  part-performance,  29,  note,  138. 
doctrine  of,  as  to  agency,  69. 
damages  in,  273. 
remedies  in,  421,  422. 

(See  Law  and  Equity.) 
costs  in,  547,  553. 
ESTATE, 

at  will,  sale  of,  not  within  the  Statute  of  Frauds,  106. 
ESTOPPEL, 

and  license,  connection  between,  137. 
EVICTION, 

whether  a  defence  to  a  mortgage,  500. 
EVIDENCE, 

of  agency,  66,  note. 

what  required  for  reforming  an  instrument,  341. 
of  fraud,  359. 
EXCEPTION, 

(See  Title.) 
EXCESSIVE   CONSIDERATION,  375. 
EXCHANGE, 

damages  in  case  of,  526. 
EXECUTED, 

and  executory  contract,  distinction,  2,  244. 

distinction,  as  to  tender,  312. 
in  connection  with  mistake,  323. 
conveyances,  remedies  in  equity  in  case  of,  422,  note, 
and  executory  agreements,  remedies  in  equity,  422,  note,  426, 
note. 
EXECUTORY, 

and  executed  contract,  distinction,  2,  244. 

in  connection  with  mistake,  323. 
in    connection    Avith    remedies    in   equity 
422,  note,  426,  note, 
contract,  effiict  of,  on  title,  2,  244,  462,  note. 

39 


610  INDEX. 

EXECUTOR, 

of  vendor,  rights  and  duties  of,  157. 
when  a  party,  439,  note. 
EXECUTION, 

of  heense,  revocation  after,  130. 

-sales,  part-performance  in  case  of,  149.     (See  Trust.) 
no  warranty  in,  216,  note. 
EXPECTANCIES, 
sale  of,  377. 

for  inadequate  consideration,  377. 
of  heirs,  remainder-men,  &c.,  377. 
requires  proof  of  consideration,  378,  380. 
when  valid,  380. 
mode  of  relief  for,  382. 
effect  of  time  upon,  382. 
ratification  of,  383. 
EXPENSES, 

liability  of  vendor  or  vendee  for,  561. 
EXPRESS, 

consideration  need  not  be,  20. 
EXTINGUISHMENT, 

of  contract  by  conveyance,  5  and  note. 
EXTRAVAGANT   PURCHASE, 
specific  performance  of,  452. 


F. 

FEE,' 

purchase  of,  and  lease,  distinction,  294. 
FEME    COVERT, 

whether  bound  by  contract,  55. 
FIRE, 

destruction  by,  effect  on  sale,  489. 
FIXTURES, 

interest  in  case  of,  42,  note. 
FLOWING, 

contract  for,  whether  within  the  Statute  of  Frauds,  104. 

right  of,  when  implied,  122. 
FORPXLOSURE   SALE, 

bidding  at,  81,  note. 
FORFEITURE   OF    DEPOSIT,  95,  536. 

whether  in  the  nature  of  liquidated  damages,  536. 


INDEX.  611 

FORM, 

of  sale,  73,  97. 

decree  against  trustee  in  case  of  pui'chase  by  liini,  405. 
FRAUD, 

consisting  in  inadequacy  of  consideration,  18. 
(See  Inadequate,  Sfc.) 

in  auction  sales,  77. 

parol  evidence  in  case  of,  91,  172,  359. 

Statute  of  Frauds,  in  case  of,  118. 

doctrine  of  part-performance  founded  on,  144  and  note,  148,  150. 

in  sale  of  leasehold,  299. 

avoiding  of  sale  foi',  342. 

whether  it  may  consist  in  unintentional  misrepresentation,  343, 
353. 

may  be  suppressio  veri  or  suggestio  falsi,  345,  362. 

consist  of  representations  out  of  the  written  contract,  345,  359. 

avoids  a  compromise,  345. 

does  not  avoid  a  sale,  unless  it  misleads,  346,  361,  note,  373,  note. 

renders  a  sale  voidable,  not  void,  349. 

action  lies  for,  notwithstanding  covenants,  349. 

time  of  rescinding  for,  349,  429. 

as  to  any  part  of  the  property,  avoids  the  whole  sale,  351. 

maxim  of  caveat  emptor  does  not  apply  in  case  of,  351. 

whether  compensation  may  be  claimed  in  case  of,  353. 

party  responsible  for,  354. 

of  agent,  354. 

vendee,  356,  364. 

remedy  for,  358. 

concurrent  jurisdiction  of,  in  law  and  equity,  358,  423. 

evidence  of,  359. 

implied  or  constructive,  366. 

(See  Implied  Fraud,  Incapacity,  Lunatic,  Mental  Inability,  Drunk- 
enness, Inadequacy  of  Consideration,  Excess  of  Consideration^ 
Non  compotes;  Heirs,  contract  by;  Expectancies,  sale  of; 
Trustees,  purchase  by.) 

as  connected  with  notice,  407,  note. 

equity  relieves  in  case  of,  428,  note,  501. 

prevents  specific  performance,  443,  446. 

of  vendor,  effect  of,  upon  a  note  for  the  price,  492. 

measure  of  damages  in  case  of,  524. 

parties  to  suit  in  case  of,  566. 
FRAUDS, 

Statute  of,  (See  Statute  of  Frauds.) 


612  INDEX. 

FRAUDULENT   CONVEYANCE, 

title  under,  222. 
FUND, 

for  payment  of  purchase-money,  8. 

G. 

GOOD, 

and  sufficient  deed,  covenant  to  give,  (See  Covenant.) 

-will  purchase  of,  186. 
GOODS  AND   LANDS, 

sale  of,  distinction  between,  105,  note. 
GRANT, 

and  license,  distinction,  124. 

public  license,  distinction,  127. 
GRASS, 

sale  of,  Statute  of  Frauds  as  to,  101,  105. 
GROSS, 

mistake,  334,  356,  note,  375,  note. 

inadequacy  of  consideration,  372. 
GROWING  PRODUCTS, 

whether  Statute  of  Frauds  applies  to,  100. 
GUARDIAN, 

of  heir  of  vendor,  liability  of,  62. 

sale  to,  of  ward's  estate,  396. 

H. 

HEIR, 

election  of,  in  case  of  devise,  9. 

sale  by,  377. 

when  a  party,  439,  note. 
HEIRS, 

whether  an  estate  contracted  for  passes  to,  10. 

of  parties  to  contract,  rights  and  duties  of,  60,  62. 

whether  parties  to  suit,  62. 

of  vendor,  suit  against,  567. 

and  executors,  respective  rights  and  liabilities  of,  567. 
HERBAGE, 

sale  of,  whether  within  the  Statute  of  Frauds,  105,  note. 
HEREDITAMENT, 

what,  104. 
HIGHEST  BIDDER, 

auction  is  a  sale  to,  73. 


INDEX.  613 

HOUSE, 

when  personal  property,  3,  note, 
license  to  erect,  130. 
HUSBAND, 

and  wife,  rights  and  duties  of,  in  case  of  sale,  55. 
when  the  wife  is  agent  of,  58,  GO. 
and  wife,  title  in  case  of,  237. 
action  in  case  of,  570. 

I.  • 

IGNORANTIA  LEG  IS,  8^c. 

connected  with  notice,  407. 
IMPLIED, 

revocation  of  will  in  reference  to  land  contracted  for,  8. 

consideration  may  be,  20. 

license,  122. 

fraud,  366. 

and  express  notice,  406  and  seq. 

(See  Notice.) 

notice  to  agent,  413. 
IMPROVEMENTS, 

by  a  purchaser  under  an  illegal  contract,  6. 

upon  land  sold,  interest  in  case  of,  48. 

sale  of,  whether  within  the  Statute  of  Frauds,  108. 

promise  to  pay  for,  whether  within  the  Statute  of  Frauds,  108. 

by  trustee,  after  purchasing  trust  estate,  399. 

claim  for  in  equity,  424,  note. 
IMPROVIDENT    CONTRACT,  375,  note. 
IN  REM, 

and  in  personam,  jurisdiction,  434. 
INADEQUACY  OF   CONSIDERATION,  18,  370. 

whether  evidence  of  fraud,  370. 

connected  with  other  grounds  of  objection  to  a  sale,  370. 
mistake  and  surprise,  370,  note. 

must  be  gross,  372. 

whether  ground  for  rescinding  or  refusing  specific  performance, 
374. 
INCAPACITY, 

to  contract,  366. 
INCORPOREAL   HEREDITAMENT, 

and  license,  distinction,  128. 


614  INDEX. 

INCUMBRANCE, 

parol  agreement  to  pay,  108. 

whether  an  objection  to  performance  of  contract,  273. 
(See  Title.      Partial  Failure,  ^c.) 
INDEMNITY, 

contract  of,  20. 
INDEPENDENT  COVENANTS,  26,  247,  262,  and  note,  476. 

promissory  note  in  case  of,  493  and  note. 
INDORSEE, 

of  note,  whether  failure  of  title  is  a  defence  against,  497. 
INFANCY, 

whether  an  objection  to  title,  237. 
INFANT, 

heirs  of  vendor,  liability  of,  62. 
conveyance  by,  62. 

claim  for  specific  performance  by,  63  and  note,  441. 

auction  sale  of  property  of,  78. 

title  under,  237. 

parties  to  sale  and  action,  (^See  Parties.) 

trustees,  conveyance  by,  (/See  Parties.) 
INJUNCTION, 

against  cutting  timber,  10. 

remedy  of,  in  case  of  sale,  591. 
INSOLVENCY, 

effect  of,  upon  title,  235,  note. 
INTENTION, 

whether  construction  of  covenants  depends  on,  262,  263,  note. 
INTEREST,  35. 

claim  of  vendor  for,  35. 

when  recoverable,  35. 

when  a  purchaser  is  not  required  to  pay,  37. 

question  of,  when  for  the  jury,  38. 

agreement  not  to  allow,  38. 

in  case  of  investment  of  the  purchase-money,  40. 

in  case  of  reversions,  42. 

whether  tender  of  deed  is  necessary  to  recover,  43. 

in  case  of  vacant  land,  43. 

claim  of  vendee  for,  44. 

in  case  of  fraud,  45. 

on  money  paid  into  court,  47. 

on  deposit,  93. 

none,  upon  money  had  and  received,  529. 


INDEX.  615 


INTERPLEADER, 

in  case  of  deposit,  94,  96. 
INVESTMENT, 

of  purchase-money,  interest  in  case  of,  40. 


J. 

JOINDER, 

of  parties,  564,  565,  569,  570. 
JOINT, 

parties,  rights  of,  as  to  price,  32. 

vendors,  form  of  deed  of,  53. 
JUDGMENT, 

against  vendee,  effect  of,  7,  10. 

against  vendor,  effect  on  the  title,  233,  269,  491. 

notice  of,  409. 
JUDICIAL   SALE, 

what  is,  466. 
JURISDICTION, 

for  specific  performance,  434. 

L. 

LACHES, 

(See  Lapse  of  Time.     Time.     Limitation.^ 
a  bar  to  specific  performance,  181,  note. 
LANDLORD, 

and  tenant,  notice  in  case  of,  423. 
LANDS, 

what  are,  under  the  Statute  of  Frauds,  100,  105,  note, 
and  goods,  distinction  between  sales  of,  105,  note. 
LAPSE   OF   TIME, 

(See  Limitation.      Time.) 
effect  of,  upon  auction  sale,  80. 
title  by,  236. 
LAW, 

and  equity,  jurisdiction  of,  as  to  mistake,  12. 

as  to  agent,  69. 
and  fact,  mistake  of,  323. 

equity,  concurrent  suits  in,  421,  note, 
remedies  in,  422. 
LAWFUL   TITLE, 

contract  for,  (See  Title.     Covenant.) 


616  INDEX. 

LEASE, 

by  agent,  GG,  note. 

agreement  for,  whether  valid  within  the  Statute  of  Frauds,  116. 

and  license,  distinction  between,  128. 

assignment  of,  when  presumed,  290. 

title  in  case  of,  293. 

and  agreement  for,  distinction,  293. 

purchase  of  the  fee,  distinction,  294. 

agreement  for,  requires  a  good  title,  296. 

covenant  in,  for  conveyance  of  the  fee,  296. 

agreement  for,  when  complete,  296. 

uncertainty  avoids,  294. 

what  title  shall  be  made  by  a  vendor  of  a,  296. 

title  to,  in  part,  effect  on  a  sale,  297. 

whether  avoided  by  mistake,  297. 

compensation,  in  case  of  the  sale  of  a,  298,  303. 

rescinding,  „  „  299  and  note. 

notice  to  purchaser  of  a,  300. 

waiver  of  title,  upon  sale  of,  301. 

parol  evidence  concerning,  301. 
waiver  in  case  of,  301. 

Statute  of  Frauds  as  to,  302. 

part-performance  in  case  of,  304. 

renewal  of,  by  trustee,  397. 

to  trustee,  by  cestui,  (See  Trust.) 

notice  of,  409,  415. 

to  agent,  by  principal,  416. 

specific  performance  in  case  of,  439,  441. 
LEASEHOLD, 

interest,  whether  Statute  of  Frauds  applies  to,  105. 

title  to,  226. 
LEGAL, 

title,  whether  vendor  must  make,  219. 
LEGISLATIVE, 

grant,  and  license,  distinction  between,  127. 
LETTERS, 

contract  by,  15. 

whether  a  sufficient  memorandum  within  the  Statute  of  Frauds, 
112. 
LICENSE,  120. 

and  part-performance,  connection  of,  120. 
whether  it  passes  an  estate,  104,  120. 


INDEX.  G17 

LICENSE  —  continued. 

is  a  mere  authority,  120,  128. 

whether  assignable,  120,  128  and  note,  130,  note. 

is  a  mere  remitter  oi  damages,  120. 

will  not  sustain  trespass,  120. 

plea  of,  doe§  not  involve  the  title,  120. 

may  be  implied,  122. 

in  reference  to  mill,  122,  128,  134. 

wharf,  122. 

light  and  air,  124,  137. 
^  navigation,  124. 

drain,  125,  note. 

dam,  125,  note,  128,  132,  134,  135. 

ditch,  125,  note,  134. 

timber,  128,  130. 

sluice,  134. 
perpetual,  124. 

in  connection  with  dominant  and  servient  tenements,  124. 
revocation  of,  125,  130. 
for  a  way,  127,  136. 

and  grant  of  incorporeal  hereditament,  distinction,  127. 
public  grant,  distinction,  127. 
lease,  distinction,  128,  318. 
easement,  distinction,  128,  132. 
deed  valid  as  a,  128. 
is  2i  personal  2i\ii\\oviiy,  128. 
whether  descendible,  128,  130,  note. 

devisable,  128. 
as  to  right  of  common,  128. 
whether  agent  may  exercise,  128,  note. 
o^  profit  and  personal,  distinction,  128,  note, 
time  of  executing,  130. 

limited  by  the  life  of  the  licenser,  130  and  note, 
terminated  by  a  conveyance,  130. 
to  erect  a  house,  130. 
revocation  of,  after  execution,  130. 
to  cut  trees,  132. 
by  parol,  and  under  seal,  132. 
in  case  of  permanent  erections,  &c.,  132. 
for  a  bridge,  135,  136. 
and  tenancy  at  sufferance,  distinction,  135. 
estoppel,  connection  of,  137. 


618  INDEX. 

LIEN, 

for  price,  5,  52. 

of  juflgment,  upon  estate  purchased,  10. 
vendor  as  against  an  assignee,  52. 
vendee,  by  payment  of  purchase-money,  430  and  note. 
LIFE, 

-annuity,  time  essential  in  case  of,  184. 

-estate,  sale  of,  when  void,  334. 
LIGHT, 

license  in  connection  with,  134,  135. 
LIMITATION,  204.  ' 

(See  Time.     Lapse  of  Time.) 

title  by,  236. 

in  case  of  the  sale  of  expectancies,  383. 
LINE, 

agreement  to  straighten,  whether  within  the  Statute  of  Frauds, 
107. 
LIQUIDATED, 

damages,  530. 

or  penalty,  whether  a  contract  is  for,  22. 
LIS  PENDENS,  416. 
LOSING   CONTRACT, 

may  be  specifically  performed,  447. 
LUNACY, 

effect  of,  on  deed,  428,  note. 
LUNAR  AND    CALENDAR   MONTHS,  206. 
LUNATIC, 

contract  by,  366. 

M. 

MAP, 

construction  of  contract  by,  168. 
MARKETABLE   TITLE,  456,  note. 
MARRIED   WOMAN, 

contract  of,  whether  enforced,  55. 

title  under,  237. 

award  in  case  of,  453. 
MASTER, 

sale  by,  bidding  at,  (See  Auction.     Sale  hy  Order,  ^c.) 

proceeds  on  the  abstract,  291. 

sale  by,  580. 

confirmation  of,  580. 


INDEX.  619 

MEMORANDUM, 

(See  Statute  of  Frauds.     Signing.) 
what  is  a  sufficient,  as  to  a  lease,  303. 

under  Statute  of  Frauds,  387,  note. 
MENTAL   INABILITY, 
.to  contract,  366. 

in  connection  with  inadequacy  of  consideration,  370. 
MERGER, 

of  contract  in  conveyance,  5,  14-i. 

in  case  of  mistake,  10. 
does  not  prevent  an  action  for  fraud, 
351. 
MILL, 

implied  right  to  flow  in  case  of,  122. 
MINE, 

how  far  real  estate,  within  the  Statute  of  Frauds,  103. 
concealment  of,  by  vendee,  357. 
MISREPRESENTATION, 

(See  Fraud.) 
in  sale  of  leasehold,  299. 
partial,  effect  of,  311. 
avoids  a  sale,  342. 
whether  it  must  be  intentional,  343. 
ill  a  plat  exhibited,  345. 
does  not  avoid,  unless  relied  on,  346. 
prevents  specific  performance,  445. 
in  judicial  sale,  584. 
MISTAKE, 

equity  corrects,  10. 

parol  evidence  of,  12,  15,  note,  92,  172,  341,  359. 

and  fraud,  distinction  between,  as  to  interest,  149. 

whether  a  lease  is  avoided  by,  297. 

rescinding  for,  309,  310,  333,  590. 

in  case  of  destruction  of  the  property  before  sale, 
334. 
in  sale,  322. 
definition  of,  323. 
of  title,  323. 

law  and  fact,  323,  341. 
and  surprise,  323,  note, 
of  fact,  326. 
mode  of  relief  for,  326. 
prevents  specific  performance,  327. 


620  INDEX: 

MISTAKE  —  continued. 

specific  performance  refused  for,  327. 

must  be  strictly  proved,  327. 

and  promptly  taken  advantage  of,  327. 

as  to  quantity,  &c.,  effect  of,  328. 

in  partial  want  of  title,  330. 

compensation  in  case  of,  331. 

(See  Title.     Partial  Failure,  ^c.      Compensation.) 

vendor  as  well  as  vendee  may  be  relieved  for,  335. 

waiver  of  right  to  rescind  for,  337. 

reforming  of  agreement,  &c.,  for  parol  proof  of,  341. 

in  representation,  whether  it  avoids  a  sale,  343. 

and  fraud  compared,  350,  note. 

and  fraud  in  part,  different  effect  of,  351. 

in  case  of  agency,  356. 

in  connection  with  want  of  consideration,  370. 

gross,  375,  note. 

money  paid  by,  action  to  recover,  480. 
MONEY, 

had  and  received,  action  for,  480. 

in  case  of  deposit,  95. 
(See  Deposit.) 

paid,  action  for,  by  auctioneer,  92,  note,  96,  99. 

had  and  received,  whether  interest  may  be  recovered  in  suit  for, 
93,  529. 
MONTHS, 

meaning  of  the  term,  206. 
MORTGAGE, 

by  a  vendee,  effect  of,  7. 

agreement    to    pay,    whether    within    the    Statute   of    Frauds, 
108. 

liability  of  a  trustee  in  connection  with,  395,  403,  note. 

whether  eviction  or  want  of  title  is  a  defence  to,  500. 
MORTGAGEE, 

and  mortgagor,  whether  parties  to  sale  are,  4  and  note. 

purchase  by,  400,  note,  404. 
MORE   OR   LESS, 

effect  of  the  terms,  271,  328,  332,  335,  336,  353. 
MOTION, 

in  equity,  what  may  be  tried  on,  278. 

reference  of  title  on,  283. 
MUTUAL  COVENANTS,  262,  note. 

(See  Covenant.) 


INDEX.  G21 


MUTUALITY, 

of  contract,  18,  24,  28,  242,  281. 
specific  perfoi'maiice  requires,  242,  441. 
a  sufficient  cousideratiou,  314. 


N. 
NEGLIGENCE, 

an  objection  to  specific  performance,  443,  445. 
NON   COMPOTES  MENTIS,  36G. 
NON-USER, 

title  depending  on,  239. 
NOTE, 

for  price,  31. 

defence  to,  486. 
averment  of  consideration  of,  486,  note, 
tender  of  deed,  whether  necessary  to  suit  on,  486. 
want  of  title,  whether  a  defence  to,  489. 
destruction  of  property  sold,  a  defence  to,  489. 
judgment  against  vendor,         „         „         491. 
partial  failure  of  title,  whether  a  defence  to,  491,  495. 
fraud  of  vendor,  „         „  492. 

incumbrances,  „         „  492. 

in  case  of  the  vendee's  possession,  493. 
indorsed,  whether  want  of  title  is  a  defence  to,  497. 

effect  upon,  of  covenants  of  warranty,  497. 
NOTICE, 

to  purchaser,  1,  note,  7,  228,  406. 

when  insufficient  for  rescinding,  31. 

by  purchaser,  whether  necessary  to  stop  interest,  40. 

of  revocation  of  license,  130. 

(See  License.) 

to  purchaser,  in  case  of  part-performance,  155. 

materiality  of  time,  how  affected  by,  202,  204. 

of  defect  of  title,  eff"ect  of,  228,  501. 

to  purchaser  of  leasehold,  what  is,  228. 

avoids  the  effect  of  misrepresentation,  345. 

English  and  American  cases  relating  to,  406,  note. 

and  registration,  connection  of,  406,  note,  407,  412. 
fraud,  connection  of,  406,  407  and  note. 

rules  of,  to  what  parties  applicable,  407,  note. 

as  connected  with  dolus  mabts,  407,  note. 

before  payment,  407,  note. 


622  INDEX. 

NOTICE  —  continued. 

of  a  parol  agreement  to  sell,  407,  410,  411. 
purchaser  wiih,  from  one  without,  408. 
without,  from  one  with,  408. 
express  or  implied,  408,  413,  note, 
constructive,  411,  413,  note. 
actual,  408,  411,  note. 

sufficient  for  inquiry,  408  and  note,  410,  note, 
suspicion  of,  408. 
of  judgment,  409. 

lease,  409,  413,  415. 

deed,  406,  note,  407,  409,  412. 
arising  from  possession,  410. 
of  defeasance,  412,  note, 
to  agent,  412  and  note,  413. 
of  unacknowledged  deed,  412,  note, 
as  connected  with  consideration,  412,  note, 
to  solicitor,  413,  note. 

agent  of  both  parties,  413,  414. 
whether  it  must  be  confined  to  the  same  transaction,  414. 
from  whom,  414,  415. 
reports  not  sufficient,  415  and  note, 
in  case  of  landlord  and  tenant,  410,  415,  416. 
'pendente  lite,  416. 
decree,  whether,  417. 

of  unregistered  judgment,  416,  note,  417,  note, 
pleading  of,  420,  note, 
effect  of,  as  to  parties  to  suit,  568. 
NURSERY, 

products  of,  whether  the  Statute  of  Frauds  applies  to,  105. 


O. 

OFFER  AND   CONTRACT, 

distinction,  13. 
OPENING   OF    BIDDINGS,  584. 


P. 

PAPER   SECURITIES, 

sale  of,  whether  Statute  of  Frauds  applies  to,  107. 
PARENT, 

and  cliild,  part-performance  in  case  of,  (See  Part,  SfC.) 


INDEX.  623 

TAROL, 

contract,  part-performance  of,  (See  Part-performance.) 
evidence  of  mistake,  12,  341,  359. 
surprise,  359. 
price,  23. 
contract  of  party  deceased,  60. 
contract,  not  binding  upon  heir  of  vendor,  G2. 
whether  agency  may  be  by,  Go. 
evidence,  to  connect  different  instruments,  70. 
as  to  sale  by  auction,  90,  92. 
in  case  of  fraud,  91,  359. 
general  admissibility  of,  98,  note. 
agreement  to  pay  incumbrances,  109. 
taxes,  13. 
cannot  be  in  part,  and  in  part  written,  115,  117. 
pleading  in  case  of,  117,  464. 
sale,  only  voidable,  118. 
license,  (See  License^ 
and  sealed  license,  revocable,  132. 
evidence,  170. 

of  part-performance,  141  and  note. 

not  admissible,  «fec.,  to  explain,  &c.,  a  writing,  170. 

as  to  lease,  &c.,  170. 

to  resist  specific  performance,  172. 

of  subsequent  agreement,  whether  valid,  172. 

waiver  or  variation  of  conti'act,  172,  316,  501,  504. 
collateral  circumstances,  176. 
agreement,  wai^-er,  or  extension  of  time  by,  197,  202. 
evidence  as  to  leaseholds,  301. 
waiver  of  tender,  476. 
sale,  action  by  vendee  for  price  in  case  of,  483. 

effect  of  vendee's  possession  upon,  493. 
trust,  388. 
PART, 

title,  effect  of,  25,  note,  330,  491,  495,  497. 

to  leasehold,  effect  of,  on  the  sale,  (See  Lease.) 
performance,  effect  of,  upon  remedy,  29,  note. 

of  parol  agreement,  56,  note,  100,  note,  391. 
by  heir,  63. 

payment  of  auction-duty  is  not,  92,  151. 
and  license,  connection  of,  120,  138. 
effect  of,  in  law  and  equity,  138. 


624  INDEX. 

PART  —  continued. 

performance,  effect  of,  upon  claim  for  price,  138,  139. 

takes  a  contract  out  of  the  Statute  of  Frauds,  141. 
may  be  proved  by  parol  evidence,  141. 
is  founded  on  fraud,  144,  148,  150. 
acts  merely  introductory  are  not,  144. 
whether   binding   upon    representative   of  one   de- 
ceased, 144,  note,  145,  note. 
certainty  required  in  case  of,  148,  152. 
in  case  of  trust,  148. 

execution  sales,  149. 
payment  of  money,  whether,  150. 
what  possession  constitutes,  152. 
in  case  of  lease,  152,  303,  304. 

acts  of,  must  be  solely  referable  to  the  contract,  152. 
effect  of,  upon  a  purchaser  without  notice,  155. 
doctrine  of,  in  the  United  States,  155. 
compensation  in  case  of,  158. 
payment,  effect  on  specific  performance,  457. 
PARTIAL, 

failure  of  title,  270,  423. 

(See  Title.     Compensation.) 
fraud,  effect  of,  351. 

title,  specific  performance  in  case  of,  455. 
PARTICULAR, 

tenants,  rights,  «&c.,  of,  54. 

whether  sufficient  under  the  Statute  of  Frauds,  117. 
of  objections,  to  title,  485,  note. 
PARTICULARS, 

bill  of,  when  required,  574. 
PARTIES, 

joint,  rights  of,  as  to  price,  32. 
to  contracts,  51. 
particular  tenants,  54. 
tenants  in  tail,  54. 
for  life,  54. 
to  suit,  whether  heirs  must  be,  62. 

heir  and  executor,  388,  439,  note. 
for  rescinding,  320. 
for  specific  performance,  467,  note, 
lunatics,  63. 
principal  and  agent,  65. 


INDEX. 


G25 


PARTIES  —  continued. 
infants,  63,  note. 

to  whom  the  Statute  of  Frauds  applies,  99. 
to  sale  and  suit,  570,  note, 
actions,  563. 

whether  parties  to  the  contract,  407,  563,  560. 
who  are,  seeking  the  aid  of  the  court,  563,  note, 
in  case  of  assignment,  564. 
joint,  564,  569,  570. 
multifariousness  as  to,  565. 
in  case  of  a  fraudulent  conveyance,  566. 

the  death  of  a  party  to  the  contract,  566. 
devise,  567. 
whether  agents  are  proper,  568,  569. 

tenants         „         568. 
in  case  of  mortgage,  568. 

notice  to  third  persons,  568. 
partnership,  569. 
husband  and  wife,  570. 
PARTNERS, 

suit  by,  to  rescind,  320. 
PARTNERSHIP, 

parties  to  suit  in  case  of,  569. 
PATENT, 

defects  in  property  sold,  363. 

(See   Concealment.) 
PAYMENT, 

into  court,  of  purchascrmoney,  47,  459,  463,  589. 

deposit,  95. 
to  auctioneer,  85. 
whether  a  pai't-performance,  150. 
and  conveyance,  mutuality  of,  242. 
whether  agent  can  receive,  323. 
PEARS, 

sale  of,  whether  valid  under  Statute  of  Frauds,  101. 
PENALTY, 

or  stipulated  damages,  whether  a  contract  is  for,  19,  22,  note, 

530. 
whether  a  deposit  is  a,  536. 
PENDENTE  LITE,  388. 
notice  to  purchaser,  416. 
nil  innovetur,  416,  417  and  note. 

40 


626  INDEX. 

PERFORMANCE, 

what  is,  27,  572. 

of  contract,  passes  estate  in  equity,  140. 

by  vendor,  form  of  averring,  477. 

substantial,  sufficient,  502. 
PERMANENT   ERECTIONS,  &c. 

license  for,  132. 
PERSONAL, 

property,  when  building  is,  3. 

estate,  application  of,  for  purchase-money,  8. 

to  the  party,  when  a  contract  is,  23,  note. 

liability  of  agent,  71. 

authority,  license  is  a,  128,  130,  note. 

license  and  of  pro  jit,  distinction,  128,  note. 

representatives,  when  parties,  388. 
PEW, 

sale  of,  whether  Statute  of  Frauds  applies  to,  105. 
PLACE, 

specific  performance  as  depending  on,  434. 
(See  Jurisdiction.^ 
PLAN, 

construction  of  contract  by,  168. 
PLAT, 

misrepresentation  by,  345. 
PLEADING,  572. 

in  action  for  deposit,  94. 

under  Statute  of  Frauds,  117,  464. 

of  notice,  420,  note. 

in  relation  to  specific  performance,  4G4. 
POLES, 

sale  of,  whether  Statute  of  Frauds  applies  to,  106,  note. 
POSSESSION, 

does  not  give  validity  to  an  illegal  purchase,  6. 

of  vendee,  when  a  waiver  of  his  rights,  255,  258,  463,  note,  502, 
504. 

suit  for,  before  payment,  29. 

interest  in  case  of,  (See  Interest.) 

effect  of,  under  Statute  of  Frauds,  141,  492. 

what,  necessary  to  part-performanee,  144. 

whether  title  may  be  founded  on,  290,  291, 
notice  of  title,  410,  415. 

defeasance,  412,  note. 


INDEX.  G27 

POSSESSION  —  conthiued. 

mixed,  is  uot  notice,  412. 

payment  in  case  of,  459. 

effect  of,  upon  an  action  by  the  vendee,  523,  note, 
costs,  551,  552. 

lapse  of  time  in  case  of,  (See  Time.) 
POTATOES, 

sale  of,  whether  the  Statute  of  Frauds  applies  to,  lOG. 
POWER, 

of  attorney,  construction  of,  G7. 
PRACTICE, 

in  relation  to  specific  performance,  467. 
PRESCRIPTION, 

none  in  case  of  license,  124. 
PRESUMPTION, 

of  title,  in  sale  of  leaseholds,  227,  note, 
title,  236. 

assignment  of  lease,  290. 
rescinding,  314. 
PRICE, 

of  land  sold,  22. 

to  whom  paid,  51,  52. 

in  case  of  husband  and  wife,  57. 

whether  auctioneer  may  receive,  85. 

agreement   concerning,  whether   Statute   of  Frauds   applies   to, 
107  and  note,  138,  139. 

necessary  to  sale,  108, 

parol  evidence  of,  109.. 

may  be  fixed  by  arbitration,  110. 

liability  for,  as  depending  on  title,  (See  Title.     Covenant.) 

must  be  fixed,  452. 

suit  to  recover  back,  479. 

tender  of,  (See  Tender.) 

notes,  &c.,  for,  (See  Tender.     Notes.) 
PRINCIPAL   AND   AGENT,  64,  569. 

(See  Agent.) 
PRINTING   OF   NAME, 

whether  sufficient  under  the  Statute  of  Frauds,  111,  note. 
PRIVATE   AND   PUBLIC   SALES,  73. 
PRODUCTS   OF   THE   SOIL, 

whether  the  Statute  of  Frauds  applies  to,  100. 
PROFITS, 

account  of,  in  case  of  rescinding,  320. 


628  INDEX. 

PROPOSAL  AND   CONTRACT, 

distinction,  (See  Contract.^ 
PUBLIC, 

and  private  sales,  73. 

grant,  and  license,  distinction,  127. 

trust,  sale  cannot  be  in  violation  of,  397. 

policy,  contract  against,  449. 
PUFFING,  77,  580. 
PURCHASE, 

-money,  payment  of,  into  court,  47,  459,  463,  589. 

and  lease,  distinction,  294. 

for  valuable  consideration,  pleading,  576. 

-money,  security  for,  590. 
PURCHASER, 

when  bound  to  pay  interest,  (See  Interest.') 

may  claim  interest,  when,  (See  Interest.) 

Q. 

QUANTITY, 

deficiency  in,  effect  on  sale,  271. 

(See  Notes,  <f;c.) 

effect  of  mistake  as  to,  328. 

(See  Mistake.) 
QUANTUM  DAMNIFICATUS, 

issue  of,  424,  439. 
QUID  PRO    QUO. 

specific  performance  requires,  441. 
QUITCLAIM   DEED, 

whether  sufiicient,  266,  267. 

R. 

RATIFICATION, 

of  sale  by  principal,  71,  355. 

to  trustee,  399,  401,  402. 

of  agency,  413. 
RATE   OF   INTEREST,  42. 
REASONABLE   TIME, 

license  continues  for,  130. 

question  of,  207. 

for  i>erformance,  252,  255,  444,  note. 
(See  Time.) 

sale  to  trustee  must  be  disaffirmed  in,  401. 


INDEX.  629 

READINESS  TO   CONVEY, 
eflfect  of,  474,  475,  572. 

(See  Tender.) 
RECEIPT  FOR   TRICE, 

whether  evidence  of  coutract,  109. 
sufficient,  under  the  Statute  of  Frauds,  117. 
RECOVERY, 

title  by,  222. 
REFERENCE, 

by  one  instrument  to  another,  whether  sufficient  under  the  Stat- 
ute of  Frauds,  112,  115. 
of  title,  248. 

when  made,  283. 
upon  what  founded,  283. 
whether  made  on  motio7i,  283. 
general  practice  as  to,  284. 
costs  of,  558  and  note. 
REFORMING, 

of  deed  or  agreement  for  mistake,  10,  338. 
fraud,  361. 
REGISTRATION, 

American  practice  of,  288. 

and  notice,  connection  of,  406,  note,  407  and  note,  412,  note, 
whether  the  maxim  ignorantia  legis,  &c.,  applies  to,  407,  note. 
REMAINDER, 

sale  of,  334,  377. 

(See  Expectancies.) 
REMAINDER-MAN, 

purchase  by,  a  trust,  397. 
REMEDY, 

in  case  of  fraud,  358. 

sale  by  trustee,  402. 
REMEDIES,  421. 
and  rights,  421. 
in  equity,  421. 

law  and  equity,  421,  note,  422  and  note, 
case  of  executed  conveyances,  422  and  note,  423. 
equitable,  by  way  of  comjjensation,  423. 

in  case  of  fraud,  423  and  note,  42 G,  note,  427,  428, 

note, 
by  rescinding  a  sale,  427. 
cancellation,  428,  note, 
specific  performance,  431. 


630  INDEX. 

RENEWAL, 

covenant  for,  must  be  certain,  226. 
of  lease  by  trustee,  397. 
EENT, 

specific  performance  in  case  of,  44,  439. 
parol  evidence  as  to,  170. 
RENTS, 

and  profits,  when  vendor  is  liable  for,  35. 
vendee         „  44. 

how  far  an  incumbrance,  273. 
false  affirmation  concerning,  360. 
and  profits,  account  of,  464,  note, 
and  interest,  mutual  claim  for,  (See  Interest.') 
REPUBLICATION  OF   WILL, 
effect  on  equitable  title,  7. 

lands  contracted  for,  10. 
REPRESENTATIVES, 

when  contract  passes  to,  23,  note, 
suit  by  or  against,  567. 
REPRESENTATION  AND   CONTRACT, 

distinction,  (See  Contract.     Fraud.') 
REPRESENTATIONS   OF   AGENT, 

(See  Agent.) 
RESALE, 

of  property  bought  by  trustee,  399,  405. 
by  Master  in  Chancery,  582,  587. 
RESCINDING,  307. 

(See  Mistake.     Fraud.     Partial  Title.) 
of  sale,  for  want  of  title,  29,  255. 

when  notice  is  insufficient  for,  31. 

interest  in  case  of,  44. 

whether  for  failure  to  convey,  309. 

misdescription  of  property,  309-312. 
distinction  between,  and  affirmance,  316,  note, 
what  constitutes,  317. 
of  auction  sale,  time  of,  (See  Auction.     Time.) 
of  sale  of  leasehold,  299. 
when  presumed,  314. 
right  of,  when  waived,  315,  349. 
right  of,  may  be  lost  by  a  new  contract,  316. 
mode  of,  317. 

what  payment  necessary  to,  318. 
which  party  has  the  right  of,  319. 


INDEX.  G31 

RESCINDING  —  continued. 

profits  and  improvements  in  case  of,  320. 
for  mistake,  334. 

(See  Mistake.) 
fraud,  (See  Fraud.) 

destruction  of  property  before  sale,  334. 
and  specific  performance,  compared,  374,  37.5. 

compensation,  compared,  426,  note,  438,  443,  445,  452,  455. 
in  equity,  427. 

action  by  vendee  in  case  of,  482. 
in  case  of  recovery  by  tenant  in  tail,  490. 
bond  for  price  given  up  in  case  of,  491,  note, 
after  judgment  for  the  jirice,  500,  note, 
must  be  total,  505. 
interest  in  case  of,  (See  Interest.) 

whether  vendee  is  liable  as  lessee  in  case  of,  (See  Use,  &c.) 
RESERVED   BIDDING,  78. 
RESTS   OF   INTEREST,  47. 
RESIGNATION   OF   TRUSTEE, 

sale  after,  396. 
RETURN   OF   SHERIFF, 

whether  a  signing  within  the  Statute  of  Frauds,  87,  note. 
REVOCATION, 

of  devise  of  land  contracted  for,  8. 
will  by  sale,  9,  10. 

will  of  purchaser,  Avhether  the  conveyance  is,  9. 
license,  104,  122,  130. 
REVERSION, 

purchase  of,  interest  in  case  of,  42. 
sale  of,  377. 

(See  Expectancies.) 
RIGHTS  AND   REMEDIES,  421. 


S. 
SALE.  ' 

private  and  auction,  compared,  73. 
auction,  of  distinct  lots,  whether  separate,  76. 
need  not  be  in  writing,  at  common  law,  97. 
by  order  of  Court,  580. 

caveat  emp)tor  in  case  of,  580. 

confirmation  of,  581. 

effect  of,  upon  the  title,  581. 


632  INDEX. 

SALE  —  continued. 

by  order  of  Court,  advertisement  and  notice  of,  581,  note, 
resale  in  case  of,  582,  583,  587. 
when  in  parcels,  582. 
by  whom  made,  583. 
opening  of  biddings,  584. 
misrepresentation  in,  584. 
mistake  in,  584. 

remedy  or  surety  for  the  price,  586. 
under  erroneoxis  decree,  586. 
opening  of  decree  in  case  of,  586. 
appeal  in  case  of,  586. 
SEAL, 

sale  does  not  require,  97,  note. 
SEALED   INSTRUMENT, 

of  agent,  how  executed,  69. 
SECURITY, 

for  price,  what  sufficient,  23,  note,  24. 
costs,  when  required  of  auctioneer,  94. 
purchase-money,  590. 
SEPARATE   LOTS, 

deed  of,  30. 
SHERIFF'S    SALE, 

puffing  at,  79. 
SIGNING, 

in  sale  by  auction,  87  and  note. 

what  sufficient  under  the  Statute  of  Frauds,  111,  115,  303. 

by  agent,  303. 

one  party,  under  Statute  of  Frauds,  (See  Statute,  »fec.) 
SLUICE, 

license  as  to,  134. 
SOLICITOR, 

liability  of,  for  deposit,  94. 
notice  to,  413,  414. 
SPECIFIC   PERFORMANCE,  422,  423,  501. 
whether  infant  can  claim,  63,  note, 
in  case  of  a  lunatic,  63. 

husband  and  wife,  57. 
distinction  as  to  evidence  for  enforcing  or  resisting,  90,  172. 
parol  evidence  in  suit  for,  172. 
laches  a  bar  to,  (See  Time.) 
history  of,  431. 
and  claim  for  damages,  compared,  432,  518. 


INDEX.  633 

SPECIFIC   PERFORMANCE  —  continued. 
right  of,  in  relation  to  real  property,  432. 
jurisdiction  for,  as  depending  on  want  of  remedy  at  law,  433. 
of  contract  in  what  form,  435. 
as  connected  with  other  grounds  of  relief,  436. 
refusal  of,  and  rescinding,  compared,  374,  37o,  438,  443,  445, 

452. 
in  part,  439. 
requires  certainty  in  the  contract,  439  and  note,  452. 

mutuality,  63,  note,  441. 
is  matter  of  discretion,  443. 

does  not  lie,  in  case  of  a  hard  or  unreasonable  contract,  443,  445. 
nor  in  case  of  fraud,  443,  463. 
'     mistake,  443. 
negligence,  443. 
abandonment  of  contract,  445. 
surprise,  449. 
misrepresentation,  445. 
may  be  had,  of  a  losing  contract,  447. 
whether  of  contract  against  public  policy,  449. 
requires  adequate  consideration,  449. 
of  extravagant  purchase,  452. 
in  favor  of  the  vendor,  454. 
requires  performance  by  plaintiff,  454.  . 

title  in  the  plaintiff,  211,  454. 
barred  by  delay,  454. 
in  favor  of  vendee,  455. 
in  case  of  partial  title,  455. 

compensation  in  connection  with,  418,  449,  note,  45  G. 
in  case  of  part-payment,  457. 

'  -performance,  458,  461. 
disability,  (See  Disahility.) 
pleadings  and  practice  in  relation  to,  464. 
executed  agreements,  422,  note, 
liquidated  damages,  535. 
arbitration,  (See  Price.     Arhitration.) 
or  damages,  bill  for,  432,  436. 
decree  for,  is  not  a  judicial  sale,  466. 
STAKEHOLDER, 

auctioneer  is  a,  (See  Auctioneer.) 
and  agent,  distinction,  70. 
STAMP, 

necessity  and  effect  of,  97,  note. 


634  INDEX. 

STATE, 

of  facts  upon  reference  of  title,  283. 
-jurisdiction  for  specific  performance,  434. 
STATUTE   OF    FRAUDS,  97. 

whether  applicable  in  case  of  mistake,  11. 
contract  by  letters  under,  15. 
part-performance  under,  56,  note,  458,  461. 
(See    Part-performance.) 
effect  of,  as  to  agency,  69. 
■whether  applicable  to  auctions,  86,  90. 
application  of,  to  action  for  deposit,  95. 
changes  the  common  law  as  to  verbal  sales,  97. 
English  and  American,  98. 

effect  of  in  United  States,  97,  note, 
construction  and  policy  of,  98,  note, 
to  what  parties  applicable,  99. 
words  of,  100. 
whether    it    requires  that  the   consideration  be   expressed,   98, 

note. 
Avhat  are  lands,  within  the,  100. 
whether  growing  products  are  within  the,  100,  105  and  note. 

trees,  100. 

timber,  100,  105. 

pears,  101. 

grass,  101,  105. 

turnips,  101. 

wood,  101,  note,  104,  note,  105. 

crops,  101,  102,  105. 

ore,  104. 

flowing,  104. 

pew,  105. 

leasehold,  105. 

potatoes,  105,  106. 

mulberry  trees,  105. 

trees  to  be  transplanted,  105. 

corn,  105. 

herbage,  105,  note. 

poles,  106,  note. 

improvements,  106,  109. 

tenancy  at  will,  106. 

paper  securities,  107.  • 

bond,  107. 
whether  it  applies  to  the  price,  107. 

a  contract  to  pay  incumbrances,  108. 


INDEX.  635 

STATUTE    OF    FJlAimS  — continued. 

in  case  of  part-performance,  108. 

whether  strictly  or  liberally  construed,  111. 

written  admission  sufficient  under,  111. 

desci'iption  of  property  sold  under,  111,  note. 

memorandum,  what  is  a  sufficient  under,  387,  note. 

signing,  what  is  a  sufficient  under.  111,  115. 
by  party  to  be  charged  under.  111. 
in  what  part  of  an  instrument,  111,  116. 

whether  a  deed  undelivered  or  defectively  executed  is  a  sufficient 
compliance  with,  111,  112  and  note. 

bond,  when  a  compliance  with,  112. 

execution  by  agent,  when  a  compliance  with,  112. 

reference  by  one  instrument  to  another,  whether  a  compliance 
with,  112,  115. 

letters,  whether  a  compliance  with,  112. 

agreement  for  lease,  whether  valid  under,  IIG,  119. 

requires  certainty  in  the  statement  of  the  agreement,  115,  IIG. 

writing  of  auctioneer,  whether  sufficient  under,  116. 

whether  a  receipt  is  sufficient  under,  117. 
particidar       „  „         117. 

acceptance  of  proposal,  when  necessary  under,  117. 

pleading  under,  117,  464. 

license  in  connection  with,  (See  License.) 

does  not  prevent  a  subsequent  parol  contract,  (See  Parol,  &c.) 

does  not  dispense  with  consideration,  409,  note. 

distinction  between,  and  rule  as  to  parol  evidence,  409,  note,  411, 
note. 
STATUTE   OF   LIMITATIONS, 

title  by,  290. 
STIPULATED   DAMAGES,  530. 

or  penalty,  whether  a  contract  is  for,  22. 
STOCK,  payment  by,  whether  fraudulent,  364. 
STULTIFY   HIMSELF, 

whether  a  party  can,  366,  note,  369,  note. 
SUBSTANTIAL   PERFORMANCE,  27,  199,  270,  273,  502. 
SUBSCRIBING  WITNESS, 

proof  by,  96. 
SUFFERANCE, 

tenancy  at,  and  license,  distinction,  135. 
SUFFICIENT   SECURITY, 

for  price,  what  is,  24. 
SUGGESTIO  FALSI,  345,  361,  note. 


636  INDEX. 

SUPPRESSIO    VERI,   345,  3G1,  note. 
SURETY   FOR  PRICE, 

remedy  in  equity  against,  226. 
SURPRISE,  370,  note. 

parol  evidence  of,  172,  359. 

prevents  specific  performance,  445. 
SUSPICION   OF  NOTICE,  408. 

T. 

TAXES, 

sale  for,  implied  trust,  398. 
TENANCY  AND   LICENSE, 

distinction,  135. 
TENANT, 

in  tail,  contract  of,  54. 
for  life,     „       „       54. 
whether  a  proper  party  to  a  suit,  568. 
TENDER, 

of  deed,  25,  29,  486. 

(See  Covenants,  3futual,  <^c.     Tide.) 
conditional,  474. 
waiver  of,  476,  502. 
purchase-money,  484. 

effect  on  interest,  39. 
deed,  necessary  to  action  on  note  for  the  price,  486. 
damages,  by  vendor,  529. 

deed,  whether  necessary  to  recover  interest,  43. 
TIMBER, 

whether  purchaser  may  cut,  10. 
interest  in  case  of,  42,  note, 
sale  of.  Statute  of  Frauds  as  to,  100,  105,  106. 
TIME, 

of  valuation  as  to  jorice,  23,  note. 

completing  sale,  effect  on  interest,  (See  Interest.) 
rescinding  auction  sale,  80. 
executing  license,  130. 
performing  contracts  of  sale,  180. 
showing  a  good  title,  251, 
when  of  the  essence  of  the  contract,  181,  202,  251,  447,  note, 
when  not  essential,  252,  298,  448,  note. 
of  hearing,  decree,  &c.,  title  at,  is  sufficient,  195,  222,  253. 
though  originally  essential,  may  be  waived,  197,  204,  253. 


INDEX.  C37 

TIIME  —  contimced. 

parol  extension  of,  (See  Parol,  d;r.) 

materiality  of,  how  affected  by  notice,  202,  204. 

of  delivering  abstract  of  title,  204,  206. 

deterioration  of  property  arising  from  lapse  of,  205. 

construction  of  contract  in  reference  to,  200. 

reasonable,  allowed  for  performing  contract,  222. 

rescinding  presumed  from  lapse  of,  314. 

of  avoiding  sale  for  fraud,  349,  429. 

effect  of,  upon  the  sale  of  expectancies,  382. 

of  disaffirming  sale  to  trustee,  401,  403. 

in  reference  to  specific  performance,  453. 

of  performance,  as  affecting  construction  of  covenants,  262,  note. 

action  by  vendee,  484. 
whether  a  question  of  law,  or  fact,  180. 
TITLE,  208. 

conveyance  of,  in   connection  with   the  price,   (See    Covenants. 

Price.) 
rescinding  for  want  of,  29. 
want  of,  effect  on  interest,  (See  Interest.) 
in  case  of  husband  and  wife,  60,  237. 
bond  for,  claim  of  heirs  upon,  (See  Bond.     Heirs.) 
not  involved  in  plea  of  license,  120. 
mutuality  of  contract  as  to,  208. 
time  of  showing,  251. 

(See  Time.) 
waiver  of  objection  to,  253,  255,  258. 
equitable,  whether  sufficient,  219,  235,  258. 
abstract  of,  duty  of  vendor  as  to,  227. 
(See  Abstract.) 
partial  failure  of,  270,  330,  495,  497. 

when  not  an  objection,  270. 
compensation  for,  273. 
when  it  avoids  the  sale,  277. 
whether  vendor  can  avail  himself  of,  281. 
reference  of,  283. 

(See  Reference,  &c.) 
of  vendor  must,  in  general,  be  good,  205,  270. 
child  on,  effect  of,  304. 
douUfid,  210,  222,  224,  254,  441,  note, 
costs  in  case  of,  548,  558. 
what  is,  210. . 
a  good,  marketable,  whether  sufficient,  214,  552. 


638  INDEX. 

TITLE  —  continued. 

a  good  marketable,  when  not  necessai'y,  215. 

vendor's  obligation  as  to,  when  fulfilled  by  giving  a  deed,  215, 

219,  262. 
paper  title,  whether  the  law  requires,  215. 
requisites  and  elements  of,  217. 
burden  of  proof  as  to,  218. 
parol,  whether  sufficient,  218. 
whether  a  contract  for  a  deed  requires  a,  219,  265. 

(See   Covenant.) 
legal,  whether  a  vendor  must  make,  219. 
by  deed,  objections  to,  222, 
recovery,  222. 

destruction  of  contingent  remainder,  222. 
devise,  222. 
in  case  of  destruction  of  the  property,  (See  Burning.) 
grounds  of  exception  to,  222. 
derived  from  an  heir,  224. 
derived  from  personal  rejjresentatives,  224. 
to  leaseholds  and  rents,  226. 

as  affected  by  a  judgment  against  the  vendor,  233. 
(See  Judgment.) 
suit,  233,  note, 
bankruptcy,  235. 
insolvency,  235,  note, 
decree  of,  in  another  State,  effect  of,  234. 
founded  on  long  possession,  whether  sufficient,  236. 

(See  Time.    Possession.) 
presumption  of,  236. 
by  lapse  of  time  and  limitation,  236. 
infancy,  whether  an  objection  to,  237. 
alienage,  whether  an  objection  to,  239. 

(See  Alien.) 
depending  on  non-user,  (See  Non-user.) 
miscellaneous  objections  to,  239. 
under  act  of  Parliament,  240. 
abstract  of,  how  verified,  240. 
how  verified  by  title-deeds,  240. 

coming  from  a  third  person,  Avhether  sufficient,  246  and  note, 
plaintiff  seeking  specific  performance  must  prove,  454. 
effect  of  executory  contract  upon,  1,  462,  note, 
in  connection  with  remedies,  1. 
assumpsit  to  try,  479  and  note. 


INDEX.  G39 

TITLE  —  continued. 

whether  a  veudor  must  show,  in  an  action  on  a  note  for  the  price, 
489. 

want  of,  whether  a  defence  to  a  mortgage,  500,  note. 

vendor  cannot  object  his  own  want  of,  oOl. 
TITLE-DEEDS,  288. 

English  and  American  practice  as  to,  288. 

production  of,  288. 

facts  stated  in,  must  be  proved,  288,  289. 

covenant  for  production  of,  289. 

copies  of,  when  required,  289. 

destruction  of,  vendor's  duty  in  case  of,  290. 

not  always  necessary,  290. 
TRAP-AUCTION,  77,  note. 
TREES, 

sale  of,  whether  within  the  Statute  of  Frauds,  100,  106. 

license  to  take,  130,  132. 
TRESPASS, 

action  of,  not  sustained  by  a  license,  120. 
TRUST, 

part-performance  in  case  of,  148,  391. 

public,  sale  in  violation  of,  397. 

claim  for  specific  performance  in  case  of,  436. 

sale,  &c.,  in  violation  of,  384. 

purchases  in,  exception  of,  from  Statute  of  Frauds,  388. 

parol,  388. 

arising  from  agency,  384. 

violation  of,  in  connection  with  other  reasons  for  avoidins  a  sale, 
385. 

and  agency  compared,  386,  388. 

effect  of  i^art-performance  in  case  of,  390. 
TRUSTEE, 

for  purchaser,  vendor  is,  7. 

infant,  conveyance  by,  63. 

rights  and  liabilities  of,  64. 

purchase  of  incumbrance  by,  382. 

cannot  purchase  the  trust  property,  388. 

renewal  of  lease  by,  393. 

remainder-man,  purchasing,  is  a,  393. 

sale  to,  after  resignation,  396. 

party  holding  an  office  in  Church  or  State  is  a,  397. 

attaching  officer  is  not  a,  397,  note. 

administrator  is  a,  397. 


640  INDEX. 

TBJJSTE^  — continued. 

purchase  by,  is  only  voidable,  398,  399,  note, 
may  be  ratified,  399,  401,  402. 
improvements  made  by,  after  purchasing,  399. 
purchase  by,  strangers  cannot  avoid,  399  note,  400. 
resale  of  property  sold  to,  399. 
cannot  himself  avoid  the  purchase,  400. 
purchase  by,  at  auction,  400. 

whether  one  can  purchase  from  another,  400,  note, 
may  occupy  the  estate,  400. 
sale  to,  at  what  time  disaffirmed,  401,  403. 

is  good,  in  favor  of  a  hond-jide  purchaser,  40i 
remedy  in  case  of,  402. 
general  disabilities  of,  in  connection  with  mortgages,  403,  note,  405. 
may  purchase  after  the  trust  has  ceased,  404. 

or  under  proceedings,  prior  to  the  trust,  404. 
whether  one  partner  is  a,  for  another,  404. 

purchase    by,  may  be  valid,  if  the  cestui  has  consulted  a    third 

person,  404. 
or  if  the  property  is  not  really  the 
cestui's,  404. 
assignee  of  bankrupt  is  a,  404. 
for  creditors,  purchase  by,  405. 
costs  against,  in  case  of  purchase  by  him,  405. 
decree,      „  „  „  „         405. 

in  case  of  attorney  and  client,  406. 

representatives  of  parties  deceased,  395,  397. 
TURNIPS, 

sale  of.  Statute  of  Frauds  as  to,  101. 


U. 
UNCERTAINTY, 

as  to  parties,  51. 

in  agreement,  under  Statute  of  Frauds,  115,  116. 

prevents  specific  performance,  439,  450,  452. 
UNCONSCIONABLE  CONTRACT,  374,  389. 
UNDERWOOD, 

sale  of,  Statute  of  Frauds  as  to,  101. 
UNDUE  INFLUENCE, 

what,  391,  note. 
UNREASONABLE  CONTRACT, 

no  specific  performance  of,  443. 


INDEX.  641 


UNREGISTERED   DEED, 

and  executory  contract,  compared,  410. 
UNWILLING, 

construction  of  term,  261  note. 
UPSET   PRICE,  74,  note. 
USE   AND   OCCUPATION, 

action  for,  between  vendor  and  vendee,  507. 

by  vendor  against  vendee,  100,  505. 

purchaser  against  a  third  person,  509. 
vendor,  509. 
USUAL   COVENANTS, 

what,  232. 
USURY,  47. 

V. 
VACANT  LAND, 

purchase  of,  interest  in  case  of,  39. 
VENDOR, 

devise  by,  9. 

when  liable  for  interest,  44. 

liability  of,  for  deposit,  (See  Deposit.) 

abandonment  of  contract  by,  evidence  of,  95. 
VENDEE, 

recovery  of  purchase-money  by,  479. 
VERBAL   AUTHORITY   OF   AGENT, 

(See  Agent.) 
VOIDABLE, 

parol  sale  is  only,  118. 

purchase  by  trustee  is  only,  398. 

W. 

WAIVER, 

of  vendee's  rights  by  possession,  (See  Possessio7i.) 

condition,  28. 

tender  of  deed,  31. 
parol,  173,  501,  505. 
of  time  of  performance,  197,  202,  204,  206. 

objection  to  title,  253,  255. 

of  title  to  leasehold,  by  purchaser,  231. 
parol,  in  case  of  lease,  302,  303. 
of  right  to  rescind,  3l5,  349,  429. 

for  mistake,  337. 
41 


642  INDEX. 

WAIVER  —  continued. 

want  of  mutuality,  441,  443. 
tender,  476. 

right  of  vendor  and  vendee,  502. 
WARRANTY, 

by  auctioneer,  parol  evidence  of,  91. 

whether  a  plan  is  a,  168. 

-deed,  covenant  for,  267  and  note. 

and  affirmation,  distinction,  363. 

covenants  of,  note  in  case  of,  497. 
WAY, 

license  for,  136. 
WIFE, 

(See  Husband,  S^e.) 

when  agent  of  the  husband,  60. 
WILD   LANDS, 

contract  concerning,  time  of  performing,  184. 
WILL, 

title  under,  222. 
WOOD, 

sale  of,  Statute  of  Frauds  as  to,  101,  note,  106. 


Cambridge:  Press  of  John  Wilson  and  Son. 


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